session of the property in dispute at the commencement of the action, and the defendant asks for a return of it in his answer, and it shall appear at the trial that his interest has ceased intermediate the commencement of the action and the trial, and the right to the possession has vested in the plaintiff, the Court should render a judgment in favor of the defendant for costs only. (O'Connor vs. Blake, 29 Cal. 47.) There is nothing, however, in our Code of Procedure which provides for anticipatory pleading. The answer cannot aver that certain facts will exist in the future. Answers-unless supplemental and averring matter arising puis darrein continuancerelate to the time of filing the complaint. So the substantial part of the declaration in replevin was that "defendant in a certain (definite place) took the goods and chattels of the plaintiff," etc.; and the plea-when defendant denied plaintiff's right-averred, "the said goods and chattels were (when taken) the goods and chattels of the defendant (or one 'E F.'s), and not of the plaintiff as alleged." (Chitty's Precedents; Pleas in Replevin.) The power of the Court, therefore, as asserted in O'Connor vs. Blake, to refuse a return where the defendant has lost his right to it between the commencement of the action and the trial, is not dependent upon allegations in the answer, but is employed upon equitable principles, and because it would not be advisable to return the property to defendant merely that it might again be replevied by plaintiff. Our conclusion is that it is not necessary to allege affirmatively that defendant, or a third person, is entitled to the possession of the specific property sued for. The general denial, if the plaintiff fails to prove his averments, determines that property taken from defendant by the writ of "replevin" should be restored to him. Nevertheless, a defendant cannot have judgment for a return of the property, or its value, unless he has claimed a return in his answer. (C. C. P. 627, 667; Gould vs. Scannell, 13 Cal. 430.) But this even if it be held to require a formal demand-is not because such demand is necessary to eke out the denials, or constitutes of itself an affirmative allegation, but because it is arbitrarily made the duty of defendant to assert his formal claim for a return as a prerequi site to a judgment for the return of the property or its value. Except for this arbitrary requirement of the statute, the formal claim for a return of the property would not be necessary. We have seen that where the facts set forth in a plea in replevin showed that defendant was entitled to the pos session of the property when the action was commenced, a formal claim or demand for a return was not essential. In reference to replevin, courts and legal writers have said that a defendant was entitled to a judgment for a return whenever the question whether a return should be had was presented by the pleadings-that is, whenever the right of plaintiff was contested, and the right of possession in defendant, or a third person, asserted. (Wells on Replevin, 489.) Under our system, the general denial contests the right of plaintiff, and under it may be shown the right of defendant or a third person. The denial of plaintiff's right to the possession necessarily includes an assertion of right in defendant, from whom the possession of the property has been taken under the writ, and would authorize a judgment for the return, were it not for the provision of the Code which requires a return to be claimed in the answer. Appellant also insists that the Court below erred in permitting the amended answer, claiming a return, to be filed. He thus states the point: "The issues originally made had been referred, by consent, to the referee; and he had tried the case and made his findings and judgment under those issues. It was too late to permit an averment, raising new issues which had never been tried, and upon which plaintiff had no opportunity to be heard." We do not understand appellant to assert that the consent of a party to a reference for a trial of all the issues debars him from making application to the Court for leave to amend his pleading, if the application is made at the proper time. His position is that it is error to permit an amendment which creates new issues after the original issues have been tried. The alternative judgment in favor of defendant for a return of the property "or the value thereof," is proper when the answer "claims" a return, and the Court, jury or referee finds the value of the property, and that defendant is entitled to a return. We have seen that the trial of the issues made by the general denial determines whether the plaintiff or defendant was entitled to the possession of the property when the action was commenced, and that a judgment refusing a return by reason of a transfer of the right of possession intermediate to the commencement of the suit and the trial does not depend upon the verbality of the pleadings. The referee properly found the value of the property upon the original pleadings. The special verdict as to value is a statutory requisite. (C. C. P. 627.) But a referee must find upon all the issues for any reason material. Under the former Constitution the District Court had jurisdiction of actions like the present only where the value of the property in controversy amounted to three hundred dollars. Hence it was necessary for plaintiff to allege value, and when denied, to prove it. It was therefore, of course, necessary for the referee to find value, although the answer was but the general denial. The referee then properly found the value of the property, because the answer denied that it was of any value. He also properly found that plaintiff was not, at the commencement of the action, "or at all," the owner or entitled to the possession of the property, because the plaintiff's title and right were denied by the answer. Inasmuch as the property had been taken out of defendant's hands and delivered to plaintiff under the "writ of replevin," the finding that plaintiff was not entitled to the possession is a finding that defendant was entitled to the possession. As to whether the right of possession had passed from defendant to plaintiff, that question was not presented by the pleadings. If, however, the question whether the right to the possession of the property had passed from defendant to plaintiff before the trial, after the commencement of the action (and after or before the answer was filed), was constructively put in issue by the original pleadings, that question must be supposed to have been passed upon by the referee, who found that plaintiff was not at the commencement of the action, "or at all," entitled to the possession. Every fact found by the referee was within the issues made by the complaint and original answer, and the facts found would fully have sustained the judgment entered had the original answer contained a formal claim for a return of the property. The "claim for a return" would not have broadened the issues. It was not necessary to the trial of any material question upon which the rights of these parties depended. No judgment could be rendered directing a return of the property to defendant, or in his favor for its value, until the answer contained the claim or demand. There could be no reason why the record should not be rounded, and the formal claim inserted in the answer, at any time prior to the actual entry of the judgment. Judgment and order affirmed. We concur: Sharpstein, J., Myrick, J., McKee, J. (Ross, J., having been disqualified, took no part in the decision of this case.) IN BANK. [Filed December 11, 1880.] No. 7484. CHARLES H. CARTER, PETITIONER, VS. ISAAC S. KALLOCH ET AL., RESPONDENTS. LABOR ON NEW CITY HALL OF SAN FRANCISCO MUST BE UNDER CONTRACT REGULARLY LET. The Act of 1876, for the completion of the New City Hall of San Francisco (Stats. 1875-6, 461), provides that all contracts to perform labor, as well as those to furnish materials, or to do both, shall be awarded to the lowest bidder after proposals or bids regularly called for; and, therefore, an ordinary contract to do day's work, not let or entered into in accordance with the provisions of the statute, cannot be enforced. Application to the Supreme Court. J. A. Waymire, for petitioner. MORRISON, C. J., delivered the opinion of the Court: This is an application for a writ of mandamus based upon a petition setting forth the following facts: 1. That the defendants constitute the Board of New City Hall Commissioners of the City and County of San Fran cisco. 2. That during the month of October, 1880, the petitioner and plaintiff, at the special instance and request of defendants, as such commissioners, performed labor upon said New City Hall in finishing a room thereof, for which labor the defendants agreed to pay him at the rate of four dollars a day. 3. That thereafter the plaintiff duly presented his bill for the work done by him, and demanded of the defendants that they should allow the same and order it paid. 4. That on the nineteenth day of October, 1880, the Board of New City Hall Commissioners, by a majority vote, adopted the following resolution: "Resolved, That we do hereby decline passing to print or payment a demand in favor of Charles H. Carter for the sum of thirty-five dollars for the work done by him at the New City Hall, on the ground that the work should have been done by contract and not by day's labor." The foregoing constitute the material facts set forth in the petition. There is but one question presented in the case, and that. relates to the legality of the contract by which the plaintiff was employed to perform labor on the New City Hall. A correct solution of this question depends entirely upon the meaning of the "Act to provide for the completion of the building in the City and County of San Francisco known as the New City Hall,' approved March 24, 1876. (Laws of 1875-6, p. 461.) Section 10 of that Act provides that the Board shall appoint officers, award contracts, allow claims, and authorize the expenditure of money, by resolutions entered in the minutes of the Board. "All resolutions appointing an officer, awarding a contract, allowing a claim, or authorizing the expenditure of money, after its introduction and before it is finally acted upon by the Board, shall be published for at least five successive days (Sundays and holidays excepted) in at least two daily newspapers published in the City and County of San Francisco, of general circulation." And Section 14 of the Act seems to us to be conclusive of the question now before the Court. That section provides that when work is to be done upon said building, or materials to be furnished, it shall be the duty of the Board of Commissioners to advertise for at least thirty days, in the official paper and in the morning and evening newspapers published in said city and county having the largest circulation, for sealed proposals for doing said work or furnishing said material, or for doing both said work and furnishing said material, as they may deem best. The said work and materials shall be of the best quality. * * *The advertisement shall also state the day, and an hour on said day within which bids will be received. At the time named in the advertisement the Board shall assemble, and remain in session for at least one hour; and all bids shall be delivered to the Board whilst it is in session, and within the hour named in the advertisement. No bids not so delivered to the Board shall be considered. * * * An abstract of said bids, showing the name of each bidder, the price at which work, labor or materials is offered by each, and such other things as may be necessary to show or explain the offer, shall be made by the secretary, and published for five days in a daily newspaper published in the City and County of San Francisco, of general circulation. At the expiration of five days after the first publication of the abstract, on the day and at the hour fixed by the Board, the said Board of Commissioners, with the aid and assistance of the Architect and Superintendent of Works, shall proceed to consider the several bids, and award the contract for doing the work or |