Suit by W. T. Lanning against Frank Tal-improvements thereon with the knowledge mage. From an adverse judgment, plaintiff appeals. Affirmed. James D. Fairchild, of Yreka, for appel lant. Taylor & Tebbe, of Yreka, for respondent. PLUMMER, J. Plaintiff appeals from an adverse judgment of the superior court of Siskiyou county in an action prosecuted by him for specific performance of an alleged oral contract to convey real property situated in the town of Dunsmuir, in the county of Siskiyou. The complaint alleges that on or about the 26th day of February, 1921, the plaintiff and defendant entered into an oral contract whereby the defendant promised and agreed to sell plaintiff certain described lots for the sum of $2,800; that thereafter a certain portion of said lots was sold for the sum of $700, and the money was received by the defendant; and that the balance due on said lots as the purchase price thereof was the sum of $2,100. It is further alleged that thereafter, and on or about the 12th day of April, 1921, the plaintiff and defendant entered into a written contract for the erection of a building to cost in the neighborhood of $15,000, and that the purchase price of the lots herein referred to, to wit, the sum of $2,100, was to be counted in as a part of the payment by the defendant to the plaintiff for the erection by the plaintiff of the building just referred to. It further appears from the allegations that said building was partly erected, that certain payments were made thereon, and that on or about the 7th day of August, 1921, when said building was partly completed, it was destroyed by fire. On the part of the plaintiff it is contended that the $2,100 is the purchase price of the lots alleged to have been bought by the plaintiff from the defendant, and was counted in as part of the payments made by the defendant to the plaintiff on account of the erection of the building agreed to be erected by the plaintiff for the defendant prior to its destruction by fire, and on the part of the defendant it is claimed that no such item was considered in the matter of payment, but that the defendant had paid to the plaintiff a sum considerably in excess of the amount which was due from the defendant to the plaintiff on account of his work and material furnished on the building being erected by the plaintiff for the defendant at the time of its destruction by fire. It is further claimed on the part of the plaintiff that the oral contract for the purchase of the lots and premises from the defendant by the plaintiff, and for which specific performance of the contract and conveyance of said premises by the defendant to the plaintiff herein is sought, was fully executed; that the plaintiff had gone into possession of the premises under said oral contract, and had made valuable and consent of the defendant. On the part of the defendant it is contended that the plaintiff had gone into the possession of the premises in controversy under a lease some years previously at the rental of $20 per month, and that whatever improvements were made upon said premises were made by the plaintiff upon his own responsibility, and without the knowledge, consent, or acquiescence of the defendant whatsoever. The value of the improvements made by the plaintiff was also controverted. The transcript shows that the action in-, volved an ascertainment of the standing of the account between the plaintiff and the defendant by reason of the contract entered into between the plaintiff and the defendant for the erection of the $15,000 building hereinbefore referred to. The testimony goes into and has to do with the different items of payment made from time to time on the $15,000 building erected by the plaintiff for the defendant from the date of the beginning of the work up to the time of its destruction by fire. In casting this account, and ascertaining the amount due from the defendant to the plaintiff, and the amount paid by the defendant to the plaintiff, the trial court came to the conclusion that the defendant had paid to the plaintiff, and for and on account of the plaintiff's use and benefit, the sum of $1,992 in excess of the amount of money due and owing from the defendant to the plaintift for and on account of the work and materials furnished by the plaintiff in the erection of the said $15,000 building, not counting in items of credit for and on account of the alleged purchase by the plaintiff from the defendant of the premises involved in this action; in other words, that the defendant had paid to the plaintiff in cash the sum of $1,992 in excess of the amount due to him from the defendant at the time of the destruction of the building which the plaintiff was erecting. It is further found by the court that, if the improvements made by the plaintiff upon the premises occupied by him and belonging to the defendant did amount in value to the sum of $1,500, there was still due in cash from the plaintiff to the defendant the sum of $492 on account of excess payment. [1] The plaintiff controverted some of the payments claimed to have been made by the defendant for the use and benefit of the plaintiff; but, such findings being supported by the evidence, it is not the province of an appellate court to hold to the contrary. The plaintiff also contends that the value of the building at the time of its destruction was in excess of that admitted by the defendant and found by the court; however, as the court has found payments in excess of the value of the building upon sufficient testimony to support the finding, we are not at liberty to disregard the same. (225 P.) The appellant begins his argument by the following statement: "By eliminating all the evidence in which there is a direct conflict, and considering the substance of the admitted facts and circumstances this is a case which calls for equity to grant us the relief prayed for." This is exactly what an appellate court is not permitted to do. It is for the trial court to consider all the conflicting evidence, as well as the admitted facts and circumstances in the case, and make its findings thereon, and if upon appeal such findings are supported by evidence, even though that evidence be in conflict with evidence introduced by the opposite party, then and in that case, it is the duty of an appellate court to hold such finding properly supported. [3] It further appears that the contract for the erection of the $15,000 building referred to in this opinion was a written contract, in which no mention is made of the oral agreement set out in plaintiff's complaint. The making of the oral agreement herein referred to is denied by the defendant, and the testimony set forth in the transcript upon that question is conflicting. On the part of the plaintiff it is testified that the oral agreement was made for the sale of said property in controversy by the defendant to the plaintiff for the sum of $2,800, and that subsequent thereto a certain portion thereof was sold for the sum of $700, leaving $2,100 still due. On the part of the defendant it is testified that no such agreement was made, that he did on his own account sell a certain portion of said premises for $700, and that at one time he did tell the plaintiff that he would sell him the premises in controversy for the sum of $2,500. Upon this conflicting testimony the court finds that there never was any oral agreement between the plaintiff and defendant for the sale and purchase of the premises involved in this action; that the defendant "did at one time state to plaintiff that plaintif could purchase said property for the sum of $2,500, but the plaintiff never agreed to purchase said property or to pay the defendant the sum of $2,500, or any other sum." Upon this question it was the duty of the trial court to make its finding, and the trial court having found that there never was any oral agreement of sale and purchase, and there being nothing in the record to show that the testimony of the defendant is inherently improbable, this court cannot on appeal hold that the finding of the trial court is not supported by the testimony, even though we were of the opinion that the trial court should have accepted the statement of the plaintiff in preference to the testimony of the defendant. [2] In the case at bar the defendant in his testimony introduced fully all the items constituting the different payments made by him, the purposes for which they were made, and the aggregate amount thereof is simply a matter of calculation. The trial court had a right to accept such testimony, and upon a review thereof we cannot find anything inherently improbable in the testimony so introduced by the defendant, and therefore no reason why the findings of the court in such particulars are not based upon sufficient evidence. If the findings of the court in this particular are true, that the plaintiff at the time of the beginning of his action owed the defendant between $400 and $500 on account of excess payments made in cash by the defendant for the uses and purposes of the plaintiff, not counting in the alleged purchase price of the premises involved in this action, then and in that case, irrespective of the existence or nonexistence of an oral contract of sale by the defendant to the plaintiff and purchase by the plaintiff of the defendant of the premises so claimed to have been purchased by the plaintiff from the defendant, a conveyance thereof could not and would not, at the present time, becide whether as a matter of law it is suffidecreed by a court of equity, for the simple reason that the payment of the purchase price thereof by the plaintiff to the defendant has not been made. The mere fact, if it be a fact, that the plaintiff changed his manner of holding such premises after the alleged oral agreement, and made improvements thereon, would not be sufficient to justify a court of equity in upholding such an agreement and decreeing full specific performance, unless it also appears that the plaintiff has paid the purchase price agreed upon, or at least is ready and willing, and prepared upon specific performance being decreed, to pay to the defendant the amount of such purchase price. It is not the province of the appellate court to weigh the evidence, but only to de cient to support the findings; and if there was any substantial evidence to support the findings, it is the duty of the appellate court to uphold them. Southern Cal. Co. v. Amalgamated Assn, 186 Cal. 604, 200 Pac. 1; West v. Visalia Abstract Co., 53 Cal. App. 467, 200 Pac. 351. A long list of cases might be cited to this effect, but this principle of law is so thoroughly settled that further citations are unnecessary. No legal reason appearing why the judg ment of the trial court should be disturbed, it is hereby ordered that the same be and it is hereby affirmed. We concur: FINCH, P. J.; HART, J. WRIGHT v. SERIMIAN et al. (Civ. 4616.) (District Court of Appeal, First District, Di vision 2, California. March 4, 1924.) 1. Work and labor 9-Facts held to entitle plaintiff to judgment for reasonable value of labor and materials furnished. Where, in an action for value of services and materials, undisputed facts showed that plaintiff, with knowledge and consent of defendants, performed labor and furnished materials upon and for defendant's building, and had not been paid, though defendants promised to pay, a judgment for plaintiff was proper. 2. Appeal and error 1039 (13)-Variance If it existed held not prejudicial where defendants knew entire transaction from beginning. A variance between the pleading and proof, in that the complaint proceeded on a quantum meruit, and the proof showed an express agreement to pay for portion of labor and materials, was not prejudicial to defendants, where the entire transaction was known by them from the beginning. of all the work and materials which he had performed and used under Stone's direction, the respondent continued with the work to its completion. It was shown, however, by the respondent that before he performed any labor on the premises a bid was submitted to the appellants for their approval and that it was only upon their solicitation that he entered upon the work, Aside from the technicalities of the manner of employment and the authority of Stonethat is, as to whether he was an agent of the appellants or an independent contractor-the undisputed facts remain that the respondent, with the knowledge and consent of the appellants, performed labor and furnished materials upon and for the building of the appellants and for which he has been paid nothing, that the judgment represents the reasonable value of the labor and materials; and that the appellants on numerous occasions promised to pay, but that they have not done so. These facts are all conceded upon this ap peal. [2] There is some argument on the part of Appeal from Superior Court, Fresno Coun- the appellants that there is a variance bety; C. E. Beaumont, Judge. tween the pleading and proof, in that the complaint proceeded upon a quantum meruit, whereas the proof showed an express agreement to pay for a portion of the labor and the entire transaction was known by the ap materials furnished. But in this case, where pellants from the beginning, it is clear that, if there was any variance between the pleading and proof, it was not of such a nature as to mislead the appellants, and thus, if any error occurred, it was not prejudicial to them. Judgment affirmed. We concur: LANGDON, P. J.; STURTEVANT, J. NOURSE, J. Plaintiff sued and recovered judgment for $1,421.20 upon a complaint alleging that at the special instance and request of the defendants he had performed labor and furnished materials in the reconstruction and repair of a building owned by the defendants, and that the reasonable value of such labor and materials was the sum for which he recovered judgment. The complaint contains a great many more words than are necessary, but the essential allegation of employment, performance, reasonable value and failure to pay are present. The answer denies all these allegations. Upon the trial the defendants admitted the falsity of their denials, and the trial court found. them to be untrue. PETERSON v. BOARD OF SUP'RS OF SO- (District Court of Appeal, Third District, Cali- Drains 13-Reclamation district is not special commission or municipal corporation within Constitution. A reclamation district created by special act which includes a part of a city is a public agency or arm of the state. and is not a special commission given jurisdiction of municipal affairs in contravention of Const. art. 11, § 13. 2. Drains -City of sixth class not authorized to reclaim private lands. [1] The only excuse for the appeal from the judgment is that some of the work was performed by the respondent under an express agreement made with him and one Stone, who was the original contractor or superintendent of construction in the employ of the appellants. It is pointed out that during the course of the work Stone, owing to some dispute with the appellants, stopped 2371, 2372a, nor Municipal Corporation Bill, Neither under Deering's Gen. Laws, Acts the work and instructed respondent to do the 862, subd. 11, has a city of the sixth class any same; that thereafter, upon the urgent re-authority to reclaim private lands, but this quest of the appellants and their express power is vested in the state as part of its promise to pay to him the reasonable value police power, and the creation of districts is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) the means of exercising this power of assessment; Pol. Code, § 3488, not being applicable. 3. Drains 13-How reclamation district created stated. Reclamation districts in cities of the sixth class may be created as provided by Pol. Code, § 3446, or by act of Legislature; section 3488 relating to cities of the first class and certain tide lands containing no inhibition against the creation of a reclamation district by special act. ment of benefits for a reclamation district It is conclusively presumed that the Legislature, in passing a special act establishing a reclamation district, took all necessary steps and gave all parties the opportunity to be 4. Municipal corporations 57-Functions of heard. cities of sixth class stated. The municipal functions of cities of the sixth class relate to public safety, public health, maintenance of streets, lights, and the enforcement of general police powers, and they do not in any sense embrace the reclamation or improvement of private property. 5. Drains ——2(1)—Defining boundaries of reclamation district by streets of municipality held not to affect validity of special act. The validity of a special act creating a reclamation district is not affected by the fact that it defines the boundaries by streets and alleys of a municipality or that it includes the streets and alleys within its exterior boundaries; the defining of boundaries not conferring on the district any political or police power over such highways. 6. Municipal corporations 64-Cities of sixth class not immune from general laws. Cities of the sixth class are not immune from the effects of general laws passed by the Legislature. 7. Statutes 97(3)-No constitutional limitation on creation of reclamation districts by special act. There is no constitutional limitation on the creation of reclamation districts by special legislative act. 8. Municipal corporations 73-Reclamation of private property held not "municipal purpose" within Constitution. Const. art. 11, § 12, providing that the Legislature shall have no power to impose taxes on a municipality or on the improved property thereof for municipal purposes does not inhibit the Legislature from establishing a reclamation district within the exterior boundaries of a city; the reclamation of private prop erty not being a municipal purpose, even though the city may be benefited thereby. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Municipal Purposes.] 9. Drains 73-Assessment not vitiated by failure to assess all lands within exterior boundaries of district. Failure to assess all lands within the exterior boundaries of a reclamation district does not vitiate the assessment. 10. Drains 76-That opportunity to appear at hearing not embraced held not to affect validity of proceeding. Appeal from Superior Court, Solano County; Percy S. King, Judge. Application by Isabelle Peterson for writ of review of the proceedings of the Board of Supervisors of the County of Solano, confirming assessment for reclamation purposFrom a judgment, denying the writ, petitioner appeals. Affirmed. es. Leo J. McEnerney, of San Francisco, for appellant. Arthur C. Huston and Harry L. Huston, both of Woodland, and Brantley W. Dobbins, Dist. Atty., of San Francisco, for respondent. PLUMMER, J. This is an appeal from the judgment of the superior court of the county of Solano, denying a writ of review of the proceedings of the board of supervisors of the county of Solano, whereby assessment No. 1 for reclamation purposes was confirmed and authorized to be levied upon certain real property in the city of Benicia, including the property owned by the petitioner. By an act of the Legislature approved June 3, 1921 (St. 1921, p. 1611), a reclamation district was created, to be called and known as the Benicia reclamation district. The boundaries of said district are described as follows: "All those lots and portions of lots, streets and alleys and portions of streets and alleys lying within and being a part of the city of Benicia, county of Solano, state of California, as such city is shown and delineated on a map of said city of Benicia filed in the office of the county recorded of the county of Solano on the. tenth day of March, 1921, and recorded in Book four, page 45 of Maps which said lots and portions of lots, streets and alleys and portions of streets and alleys, all lie within a territory bounded as follows: [Here follows description of the property referred to, which includes something over 25 blocks lying within the exterior boundaries of the city of Benicia].”. By section 2 of the act just referred to the management and control of said Benicia reclamation district is made subject to the provisions of article 1 of chapter 1 of title 8 of Where notice and opportunity was duly part 3 of the Political Code, relating to given to appear at proceedings for the assess-swamp and overflowed lands and reclamaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tion districts and the amendments thereto.) As some of the foregoing objections apThree trustees were provided for. The prin-parently overlap, we shall not attempt to cipal place of business was designated as the consider them seriatim. city of Benicia. The funds of the district were to be deposited in the county treasury of the county of Solano. Provision was made for the adoption of by-laws by the district. All the rights and powers conferred by law upon reclamation or swamp land districts were conferred upon the district organized by said act; in fact, it appears to be the intent and purport to confer upon the Benicia reclamation district all and singular the powers conferred by law upon and exercised by other reclamation and swamp land districts. By reason of the conclusion at which we have arrived upon the main issues presented for consideration in this cause, the preliminary objection urged by respondent, that certiorari is not the proper proceeding to test the validity of the acts of the board of supervisors of the county of Solano in levying an assessment upon the property included in the district, will neither be considered nor passed upon herein. It is insisted by the appellant that the act creating the Benicia reclamation district vests in the district functions and powers conferred upon the city of Benicia by the Municipal Corporation Bill and by the General Laws of the state: "That the jurisdiction over reclamation within the city of Benicia is vested in the municipal authorities; that the act creating the Benicia reclamation district vests in a special commission jurisdiction over the municipal functions of the city of Benicia in contravention of section 13, art. 11, of the Constitution; that the act creating the Benicia reclamation district delegates to a special commission the power to levy assessments for a municipal purpose and therefore is in contravention of section 12, art. 11, of the state Constitution; that the act creating the Benicia reclamation district is an act attempting to regulate the affairs of the city of Benicia by a special law and hence in violation of section 6, art. 11, of the Constitution of California; that the act creating the Benicia reclamation district is in violation of subdivision 33, § 25, art. 4, of the state Constitution in that it is a special and local law relating to and dealing with a subject wherein the general law can be made applicable; that the assessment levied by the supervisors places the entire cost of reclamation upon only a part of the land benefited, and it is therefore confiscatory and in violation of section 13 of article 1 of the Constitution of the state of California, and section 1 of the Fourteenth Amendment to the Constitution of the United States; that, if the act creating the Benicia reclamation district be construed as giving to the board of supervisors the power to determine the benefits, then the assessment is unconstitutional in that it was levied without giving petitioner a hearing or opportunity of hearing as to the inclusion of her lands within the assessment district." [1] Many definitions have been given of the kind and character and the appellation properly applicable to a reclamation district, but in no instance has such an organization ever been called a special commission or a municipal corporation, but it is now generally spoken of, and we may therefore assume legally known and designated, simply as a public agency or an arm of the state. From which it follows that the contention of the appellant that a special commission or person or superbody has been created to interfere with or exercise control over the municipal affairs of the city of Benicia is wholly untenable. Whatever is done is the act of the state of California, and is not the act of a special commission by a corporation, company, association, or individual within the meaning and intent of those words as they appear in section 13 of article 11 of the Constitution of the state. [2, 3] Nor can we follow the argument of the appellant in the interpretation sought to be given to section 3488 of the Political Code. As we read that section it vests no power in municipal corporations of the sixth class to reclaim private lands. That section, as amended, specifies that the provisions of the Political Code therein enumerated shall be applicable to any land situated within the limits of municipalities of the first class only and to tide lands within two miles of other incorporate cities or towns which are subject to overflow. There are two methods of creating reclamation districts-one as provided by section 3446 of the Political Code, and the other by act of the Legislature. It may be further observed that there is nothing contained in section 3488, supra, preventing or inhibiting the creation of a reclamation district by special act of the Legislature. It is only when the district is organized under section 3488 that the municipality has the same power over it as is exercised by county officers over districts organized under the other provisions of the Political Code. Subdivision 11 of section 862 of the Municipal Corporation Bill (Sts. 1883, p. 93. as amended), relied upon by appellant, does not, as we read the subdivision, vest cities of the sixth class with any power to assess city lots or improve the same by raising the level thereof, filling up depressions therein, or conferring any power whatever, save and except the building of breakwaters, jetties, seawalls, or embankments to protect the city from the incursion of outside waters. There is nothing in the subdivision conferring the authority to make the costs of the improvements and the filling up of the lots a burden to be borne by the lots and premises im |