It was admitted at the trial that the work performed was of the value alleged in the complaint, i. e., $2,274.77.

The judgment and order are affirmed.

Lorigan, J., and Henshaw, J., concurred.

Hearing in Bank denied.

[L. A. No. 3214. Department Two.-January 29, 1914.] THE BARBER ASPHALT PAVING COMPANY (a Cor poration), Respondent, v. PAUL BANCROFT et al., Appellants.

[L. A. No. 3213. Department Two.-January 29, 1914.] THE BARBER ASPHALT PAVING COMPANY (a Corporation), Respondent, v. A. L. ROSS et al., Appellants. MUNICIPAL CORPORATIONS-STREET ASSESSMENT-COMPLETION OF WORK WITHIN TIME.-The right to recover a street paving assessment depends upon the completion of the work within the time limited by the contract or a valid extension thereof. ID.-ACTION TO RECOVER ASSESSMENT SUFFICIENCY OF COMPLAINT IN SHOWING TIME OF COMPLETION OF WORK.-A complaint in an action by a contractor to recover a paving assessment which alleges that under the contract with the city, October 17, 1907, was fixed as the time for the completion of the work; that, on September 23, 1907, the common council authorized the superintendent of streets to extend the time within which the work might be completed, sixty days from and after October 17, 1907; that on September 25, 1907, that official "extended the time for the completion of said work for sixty days from and after the 17th day of September, 1907, and indorsed such extension of time on said contract"; that the plaintiff completed the work "before the 12th day of December, 1907," sufficiently shows, in the absence of special demurrer, that the work was done within time.

ID. UNCERTAINTY IN PLEADING-TAKING ADVANTAGE OF UNDER GENERAL DEMURRERS. The uncertainty in the pleading cannot be taken advantage of on appeal under general demurrers which were not argued.

ID. ASSESSMENT AGAINST UNKNOWN OWNERS-CONCLUSIVENESS OF CERTIFICATE OF STREET SUPERINTENDENT.-An assessment for street

paving is not void on its face because the street superintendent assessed all of the pieces of property involved to "unknown" owners, where he has made his certificate that the ownership of such properties was unknown to him; and in an action to recover the assessments evidence in the shape of records from the auditor's office showing the names of the persons to whom the lands along the street had been assessed, is properly rejected. ID.-POWER OF ATTORNEY-EXECUTION OF PAVING CONTRACT-MEANING OF "ASPHALT PAVEMENT" AND "ASPHALT MACADAM PAVEMENT.”— A power of attorney authorizing the execution of a contract "for laying asphalt pavement" on a certain street is sufficient to authorize the execution of a contract for paving the street with "asphalt macadam pavement," where the evidence, though conflicting, warrants the conclusion that the term "asphalt pavement" is the general designation within which the specific name "asphalt macadam pavement" is properly included.

ID.-CONTRACT FOR STREET WORK-EFFECT OF CLAUSE LIMITING HOURS OF LABOR.-A specification in a contract for street paving that no person doing work thereunder shall be required to labor more than eight hours a day, except in cases of extraordinary emergency, does not invalidate the contract, where there is a general custom of the authorities in charge of such work to demand a clause in every contract similarly limiting the hours of labor.

ID. CUSTOM AS TO HOURS OF LABOR-CONTROLLING EFFECT.-Such custom does not necessarily control a contractor; he is bound by the law alone. And it cannot be said as a matter of law that all bidders would accept a custom rather than the letter of the law as the controlling factor in their offers to do the work.

ID.-BOND BY CONTRACTOR-CONSTITUTIONALITY of Statute Requiring.— The requirement of the Vrooman Act that a public improvement contractor shall give a bond to the superintendent of streets which shall inure to the benefit of all persons who perform labor on or furnish materials to be used on the improvement, is constitutional. APPEALS from judgments of the Superior Court of San Diego County and from orders refusing new trials. T. L. Lewis, Judge.

The facts are stated in the opinion of the court.

Luce & Luce, and Alfred C. Skaife, for Appellants.

Guy Le Roy Stevick, L. A. Redman, and Jewel Alexander, for Fidelity and Deposit Company of Maryland.

Doolittle & Morrison, for Respondent.

MELVIN, J.-Appeals have been taken by the defendants and appellants in two cases from the judgments and orders denying motions for new trials. As the two actions are exactly similar they have been consolidated for the purposes of this decision.

The plaintiff corporation, a contractor with the city of San Diego, sued to recover from the defendants an assessment levied for the paving of Fifth Street in said city. General demurrers to the complaints were filed but were overruled. There was no argument on said demurrers. The trial was had before the court without a jury, resulting, as indicated above, in judgments for the plaintiff.

Appellants contend that their demurrers should have been sustained. There was an allegation in each complaint that under the contract with the city, October 17, 1907, was fixed as the time for the completion of the work; that, on September 23, 1907, the common council authorized the superintendent of streets to extend the time within which the work might be completed, sixty days from and after October 17, 1907; that on September 25, 1907, that official "extended the time. for the completion of said work for sixty days from and after the 17th day of September, 1907, and indorsed such extension of time on said contract." It was also averred that The Barber Asphalt Paving Company completed the work "before the 12th day of December, 1907." As the right to recover for the work depends upon its completion within the time limited by the contract or a valid extension thereof (Turney v. Dougherty, 53 Cal. 619; Beveridge v. Livingstone, 54 Cal. 56; Kelso v. Cole, 121 Cal. 123, [53 Pac. 353]; Heft v. Payne, 97 Cal. 109, [31 Pac. 844]; Union Construction and Paving Co. v. Campbell, 2 Cal. App. 534 [84 Pac. 305]), appellants assert that the complaints, failing to set forth that necessary element of a cause of action, should fall before the general demurrers. Respondent asserts that the specifying of "September" as the month from which the extension of the time should begin to run was a clerical error. The indicated month should have been "October." This is most probably true, but in the absence of any special demurrer the complaint was sufficient; therefore the mistaken, if mistaken, use of the word "September" is immaterial. It appears sufficiently that the superintendent of streets was directed to make the extension for

sixty days from and after October 17, and that the work was done "as specified and described in the contract" before the twelfth day of December, 1907. The phrase "before the twelfth day of December, 1907," might refer to a time prior to the date alleged as sixty days after "September" 17th, or the pleader may have depended upon the presumption of official duty properly performed by the superintendent of streets in extending the period for the completion of the work to sixty days from October 17th. Of course there would be and is an uncertainty in the pleadings, but appellants may not now take advantage of it under general demurrers which were not argued, and after failing to raise the point until after the appeals reached this court. Each complaint alleges the performance of the work, and the issuance of the warrant, diagram, certificate, and assessment-roll and then follows the averment: "That said assessment was duly given and made and that all of said things were done at the times and in the manner prescribed by law." This amounted prima facie to a pleading that the work was done within the time allowed by law.

Appellants assert that the assessment-roll was void on its face because the superintendent of streets assessed all of the pieces of property involved in the proceeding to improve Fifth Street to "unknown" owners. This, they say, was so flagrant a violation of the duty of the superintendent of streets that the assessment-roll amounts to nothing-is in defiance of the law requiring him to make the assessment in the name of the owner if known to him. It is argued that the superintendent of streets may not sit idly and refuse by inquiry or by inspection of assessment-rolls to discover the ownership. of the property involved. Section 8 of the Vrooman Act (Stats. 1889, p. 166) provides that the assessment shall show "the name of the owner of each lot, or portion of a lot (if known to the street superintendent); if unknown the word 'unknown' shall be written opposite the number of the lot." It has been repeatedly held that when the superintendent of streets makes his certificate that the ownership of a particular piece of property is unknown to him, such certificate is conclusive of the fact so certified and may not be collaterally attacked. There was such certificate in the proceedings now under review, and we cannot say, as matter of law, that the

officer making it was not ignorant of the ownership of all of the parcels of land which had been assessed. (Chambers v. Satterlee, 40 Cal. 518; Himmelmann v. Steiner, 38 Cal. 177; Hewes v. Reis, 40 Cal. 261; Dougherty v. Miller, 36 Cal. 89.) It has even been held that one who admittedly owns part of a lot but demands that it be assessed as a whole may not complain if the superintendent of streets assess it to "unknown" owners. (McSherry v. Wood, 102 Cal. 650, [36 Pac. 1010].) We conclude therefore that the assessmentroll was not void upon its face; and for the same reasons we are of the opinion that the trial court committed no error in refusing to admit evidence in the shape of records from the auditor's office showing the names of the persons to whom the lands along Fifth Street had been assessed.

The next attack of appellants is made upon the authority of the officer of the plaintiff corporation to execute the contract with the city to pave Fifth Street. The basis of the said attack is the alleged insufficiency of the power of attorney held by C. A. Williams, who executed the contract on behalf of The Barber Asphalt Paving Company. It appears unquestionably that he held a power of attorney authorizing him. on behalf of that corporation to enter into a contract "for laying asphalt pavement on Fifth Street in the city of San Diego"; but the contract which was actually executed provided for the paving of that street with "asphalt macadam pavement.' Appellants believe that these verbal differences relate to methods and materials entirely distinct. There was some testimony given by experts tending to establish different meanings of the two expressions used respectively in the power of attorney and in the contract. Other witnesses testified that any pavement made with asphaltum might correctly be termed an "asphalt pavement." Upon this conflict the lower court might well decide that the term "asphalt pavement" was the general designation within which the specific name "asphalt macadam pavement" was properly included. Under such an interpretation the power of attorney was sufficient.

There was a stipulation in the contract that no person doing work thereunder in the paving of Fifth Street should be required to labor more than eight hours a day, except in cases of extraordinary emergency. Appellants assign this stipula