
    [L. A. No. 1908.
    Department Two.
    December 21, 1908.]
    CHARLES STANSBURY, Appellant, v. R. W. POINDEXTER, Respondent.
    Street Assessment — Unlawful Bestriction in Contract as to Liability of Contractor. — A provision in a contract for street work in a municipality, that “all loss or damage arising from the nature of the work to be done under this agreement, or from any unforeseen obstruction or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from encumbrances on the lines of the work, or for any act or omission on the part of the contractor, or any person or agent employed by him not authorized by this agreement, shall be sustained by the contractor,” has the effect to render invalid the contract, assessment, and lien.
    Id. — Evidence that Illegal Bestriction Did Not Increase Bids.— In an action to enforce a lien, based upon sueh a contract, it is immaterial that the contractor was denied an opportunity of showing, by all who bid for the work, that sueh illegal provision had. not operated to increase the amount of their bids. Such a showing would not have negatived the possibility that other persons may have been deterred from offering to do the work at all by reason of the unlawful restriction.
    APPEAL from a judgment of the Superior Court of Los Angeles County. Curtis D. Wilbur, Judge.
    The facts are stated in the opinion of the court.
    Scarborough & Bowen, for Appellant.
    Long & Baker, for Respondent.
   MEL YIN, J.

This is an action by a contractor upon his claim for work performed upon Normandie Avenue, Los Angeles, adjacent to defendant’s property. The contract, assessment, and lien were declared invalid by the superior court, and judgment was given for the defendant. The contract between the street superintendent and appellant provided that Normandie Avenue should be graded and graveled “in accordance with the plans and profile on file at the office of the city engineer, and specifications for the construction of graveled streets on file in the office of the city clerk, said specifications being numbered 68,” and that curbing should be laid “in accordance with specifications for constructing redwood curbs on file in the office of the city clerk, said specifications being numbered 52.” In each of said specifications the following language is used: “All loss or damage arising from the nature of the work to be done under this agreement, or from any unforeseen obstruction or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from encumbrances on the lines of the work, or for any act or omission on the part of the contractor, or any person or agent employed by him not authorized by this agreement, shall be sustained by the contractor.” Practically the same provision was declared fatal to the validity of the ordinance authorizing certain street work, considered in the case of Blochman v. Spreckels, 135 Cal. 664, [67 Pac. 1061], and that case is conclusive of the question presented here. There is no merit in appellant’s point that he was denied opportunity of showing, by all who presented bids to the city council for the work, that the specifications quoted had not operated to increase the amount of their bids. This objection leaves out of consideration the fact that some bidders may have been deterred from offering to do the work at all by reason of the unlawful restrictions contained in the proposed contract. Such persons may have concluded very properly that they could not afford to do the work, in view of the burdens imposed, and, without such burdens, they might have been prepared to present lower bids than those filed by their more daring competitors.

The judgment is affirmed.

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