Opinion
Department Two
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
The assessment was void for the reason that the work was not completed in time (Beveridge v. Livingstone , 54 Cal. 56); the defendants are not estopped to deny the validity of the assessment. (Farish v. Coon , 40 Cal. 33.)
Edward Kirkpatrick, for Appellants.
Shafter, Parker & Waterman, for Respondent.
The defendants are estopped from setting up any defense growing out of the proceedings prior to assignment to defeat the assignee. (City of Burlington v. Gilbert, 31 Iowa 356; Correy v. Graynor, 22 Ohio St. 584.)
JUDGES: Thornton, J. Myrick, J., and Sharpstein, J., concurred.
OPINION
THORNTON, Judge
It appears in this cause, which was an action to enforce the lien of a street assessment, that the property owners took the contract for doing the work, and that after the work was done and the assessment made by the proper officer, the contractors assigned for value received to the plaintiff all their right, title and interest in said contract, and in the assessment, warrant, and diagram, and all the moneys due and to grow due thereon.
Patterson, one of the contracting property owners and assignors, was a party defendant, and the court rendered judgment against him.
It is contended that Patterson, the appellant, is estopped to deny the validity of the contract and of the assessment. We are of opinion that this point is well taken. A party cannot for value assign a contract and assessment, and then set up the defense that they are invalid, because not in compliance with the street law. The law does not tolerate such a procedure. Having accepted a benefit under it, he cannot be heard to say that it is invalid.
Judgment and order affirmed.