Girvin

This is an action to foreclose the lien of a street assessment, levied by virtue of a contract for grading and paving in part with basalt and in part with bitumen and for curbing Channel street, in the city of Stockton, from the east line of Hunter street to the west line of California street, etc.

The contract was let by the street superintendent of the city of Stockton on the twelfth day of September, 1892, to one F. J. Owens, who thereafter and on the *607 twenty-second day of September, 1892, assigned to the plaintiffs and appellants herein, by whom the work was performed.

The cause was tried by the court without a jury, and upon the written findings judgment was entered in favor of defendant for his costs. The appeal is from the final judgment and from an order denying plaintiff’s motion for a new trial.

There are two prominent questions involved in the appeal. The first relates to the validity of the action of the city council in awarding the contract to F. J. Owens; and the second, whether, conceding the work was not performed in accordance with the specifications of the contract, defendant is iu a condition to take advantage thereof.

The facts upon which the first…