Appellant city challenged the judgment of the Superior Court of Santa Clara County (California), which sustained a demurrer without leave to amend by respondent contractor in a claim concerning the right of the city to recover the proceeds of a street improvement contract.

 

Overview: Why is proving a bona fide occupational qualification essential

 

The city alleged that the contractor's attorney had a conflict of interest but did not claim the contractor's attorney represented the contractor at the time underlying contracts were awarded to it. The most specific statement upon this point was that, at the time of the execution of the contract, he was both a member of the city council and an employee of the construction company. The city did not charge him with voting to award the contract to the contractor. Because the facts did not show that the councilman had an interest in the contract at the time it was awarded, they did not state a cause of action upon the ground of his disqualification. The demurrer to the cause of action was, therefore, properly sustained. The court also found that a contract based on misrepresentations was voidable, not void. Because the contract had been completely executed, demurrer was properly sustained on the city's claim for damages. The contractor argued that the city was barred from claims the Improvement Act; however, the court found the statute inapplicable because the validity of an assessment was not in issue.

 

Outcome

The judgment was reversed with directions to the trial court to overrule the demurrer as the statutory cause of action and allow the contractor to answer.

 

Procedural Posture

Appellant city challenged the judgment of the Superior Court of Santa Clara County (California), which sustained a demurrer without leave to amend by respondent contractor in a claim concerning the right of the city to recover the proceeds of a street improvement contract.

 

Overview: 

The city alleged that the contractor's attorney had a conflict of interest but did not claim the contractor's attorney represented the contractor at the time underlying contracts were awarded to it. The most specific statement upon this point was that, at the time of the execution of the contract, he was both a member of the city council and an employee of the construction company. The city did not charge him with voting to award the contract to the contractor. Because the facts did not show that the councilman had an interest in the contract at the time it was awarded, they did not state a cause of action upon the ground of his disqualification. The demurrer to the cause of action was, therefore, properly sustained. The court also found that a contract based on misrepresentations was voidable, not void. Because the contract had been completely executed, demurrer was properly sustained on the city's claim for damages. The contractor argued that the city was barred from claims the Improvement Act; however, the court found the statute inapplicable because the validity of an assessment was not in issue.

 

Outcome

The judgment was reversed with directions to the trial court to overrule the demurrer as the statutory cause of action and allow the contractor to answer.