ultimate fact. Upon this issue the court found against plaintiff, in a finding that directly traverses the negligence as alleged in the complaint. The court might have stopped with this finding negativing negligence on the part of defendant as alleged in the complaint, but it went on and found, in more detail, certain other facts-facts which appellant claims are inconsistent with the court's findings that defendant was not, and that plaintiff himself was, guilty of negligence. Findings are to be read as a whole, and, if possible, are to be interpreted so as to uphold the judgment. And unless there is an irreconcilable conflict between the general finding that defendant was not negligent and the findings as to the particulars upon which appellant relies, the judgment must be affirmed.

[6] The court found that at the place where the collision occurred the street, from curb to curb, is fifty-six feet wide; that on the south side of the street are two interurban street-car tracks; that the most northerly rail is five or six feet south of the center line of the street; and that "by reason of these said street-car tracks and the condition of the street on the south side of said street, the traffic, both east and west along said Stephenson Avenue, is confined almost entirely to the northerly half of said street." Defendant was driving in an easterly direction. So that, ordinarily, it would have been his duty to keep to the south of the center line of the street-that is, on the right-hand side of the highway. The court further found that, at the time of the collision, defendant was driving his automobile along the right-hand side "of said traveled portion of said roadway, "i. e., along the right-hand side of that portion of the highway that lies to the north of the most northerly rail; that he was operating his automobile in a careful manner; but that plaintiff, while attempting to cross from the north to the south side of the street, suddenly emerged from behind a vehicle, and before defendant was aware of his presence so as to avoid a collision, ran against defendant's automobile and was injured.

It is provided by the Motor Vehicle Act then in force (sec. 20, Stats. 1913, p. 646), that the driver of an automobile, "wherever practicable shall travel on the right-hand side" of the highway. The court did not find, in so many words, that it was not "practicable" for respondent to

drive on the right-hand side of the road. Appellant contends, therefore, that because the court found that respondent was not driving on the right-hand side of the road, negligence must conclusively be presumed in the absence of a finding expressly declaring that it was not practicable for him to drive to the right of the center line of the street. It does not clearly appear from the findings that respondent's automobile was wholly to the left of the center line of the road. We shall, however, resolve the doubt in appellant's favor and assume that the automobile was wholly to the left of the center line. But even so, the findings do not disclose any irreconcilable conflict between the general finding of an absence of negligence on respondent's part and the more particular details of the accident as disclosed by the other findings. If the court had expressly found that, at this particular place, it was "practicable" for respondent to drive on the right-hand side of the street, there then would have been a basis for the claim of a direct antagonism between the general finding that defendant was not negligent and the other facts found by the court. the findings do not say that it was practicable for respondent to drive on the right-hand side of the highway at the place where the accident happened. There is, therefore, no irreconcilable conflict in the findings of the court. Furthermore, from the facts found it may well be that, at the place where the accident happened, it in fact was not practicable to drive on the right-hand side of the highway, and that it was proper to drive, as the court found respondent did, on the right-hand side of the "traveled portion," i. e., on the right-hand side of that part of the street which lies north of the most northerly of the interurban street-car rails. The greater portion of the southerly half of the road. seems to have been occupied by the interurban street-car tracks. It is possible there were ties between the rails that stood up above the general surface of the road. At any rate, the findings state that it was because of "the condition of the street on the south side," as well as by reason of the presence of the street-car tracks, that traffic, both east and west, was "confined almost entirely to the northerly half of said street." If, as is quite possible, there were large ties, above ground, between the rails, almost all of the southerly half of the highway would have been

unsuitable for ordinary vehicular travel, and its use by automobiles may not have been practicable. Under such circumstances, negligence cannot be conclusively presumed from the fact that defendant was driving on the right-hand side of that part of the street along which horse-drawn and motor vehicles, going in either direction, ordinarily travel. (See Stohlman v. Martin, 28 Cal. App. 338, [152 Pac. 319].) Judgment affirmed.

Sloane, J., and Thomas, J., concurred.

[Civ. No. 2895. First Appellate District, Division Two.-August 15, 1919.]

L. L. PAGE, Respondent, v. LUCIO M. MINTZER et al., as Executors, etc., Appellants.

[1] STREET LAW-ABSENCE OF SUPERINTENDENT OF STREETS-PERFORMANCE OF DUTIES BY ASSISTANT-VALIDITY OF ACTS.-Where, during the absence of the superintendent of streets on leave, his assistant, a minor, whom he had appointed and whose appointment was approved by a resolution of the city council, but who never took oath of office or filed a bond, had complete charge of his office, and while thus in charge executed contracts for street work and signed certain extensions of time for the performance thereof, each time signing the name of the superintendent of streets "by" himself, as "assistant superintendent of streets," or an abbreviation of that title, such assistant was, as to third persons dealing with him in good faith, the de facto officer, and the same validity and the same presumptions attached to his actions as to those of an officer de jure.

[2] ID.-ACTION TO FORECLOSE LIEN-FAILURE TO APPEAL JUDGMENT -MISCARRIAGE OF JUSTICE.-Where, in an action to foreclose a lien for street work performed under a contract thus executed, it appears that the steps necessary to vest the city council with jurisdiction to order the work done were duly taken, the work done satisfactorily and at the prices fixed by the council in its acceptance of the bid of the plaintiff, and no appeal from the assessment was made by the defendant to the council, it cannot be held that judgment of the trial court foreclosing the lien constituted a miscarriage of justice.

1. Deputy as public officer, note, Ann. Cas. 1913C, 88.

APPEAL from a judgment of the Superior Court of Contra Costa County. R. H. Latimer, Judge. Affirmed.

The facts are stated in the opinion of the court.

John F. Cassell for Appellants.

Johnson & Shaw for Respondent.

BRITTAIN, J.-The defendant property owners appeal from a judgment foreclosing the lien of a street assessment in the city of Richmond. The only question is as to the validity of certain acts performed by the assistant superintendent of streets.

There is no question regarding the proceedings by which the city council acquired jurisdiction to order the work to be done. Upon proper advertisement the plaintiff's bid for the work was properly accepted. It is not suggested that the work was not well done, within reasonable time, in entire accord with the specifications, and for the agreed price. There is no question of the regularity or fairness of the distribution of the cost upon the property. It is not suggested that the defendants' property was not directly benefited by the work nor that the assessment on defendants' lots was not in proportion to the benefits received.

[1] The work was done under the Vrooman Act, [Stats. 1885, p. 147], which requires that after the award has been made the superintendent of streets shall enter into a contract with the successful bidder, and in the contract fix the time for the commencement and completion of the work, which time may be extended under certain conditions by the superintendent of streets. From the record in the present case it appears that long prior to the institution of the proceedings involved, one Blankenship, who was the superintendent of streets, appointed an assistant, W. D. Boswell, whose appointment was approved by a resolution of the city council. About the time the bid of the plaintiff was accepted, by another resolution of the council, Blankenship, the superintendent of streets, was granted a leave of absence for two weeks. The contract, which in neither form nor substance is objected to by the defendants, was signed by the contractor on December 30, 1908. At that time Blankenship

was absent from the city of Richmond. He returned on January 2, 1909. When the contractor signed the contract Boswell was in entire charge of the business office of the superintendent of streets. During the absence of Blankenship he transacted all the business of the superintendent of streets with members of the city government, contractors, employees of the street department, and others. When the contractor signed the contract he paid to Boswell for the city four hundred dollars required to cover preliminary expenses, whereupon Boswell, with a rubber stamp, appended to the contract the name of "N. M. Blankenship, Superintendent of Streets of the City of Richmond," and wrote beneath it, "By W. D. Boswell, Assistant Superintendent of Streets." The contract was then attested, "signed, sealed and delivered in the presence of H. H. Turley, City Clerk." In the contract the time of commencement and completion of the work was fixed. Subsequently, Blankenship was succeeded in office by R. L. Fernald, and Boswell continued as assistant superintendent of streets. The city council granted certain extensions of time for the completion of the work. The Vrooman Act provides that the superintendent of streets may extend the time under the direction of the city council. One of the extensions was under the incumbency of Blankenship, and one during that of Fernald. Both times the name of the superintendent of streets was signed by Boswell, who in one instance added after his name. 'Ass't Supt. of Sts.," and in the other, "Ass't." Boswell never took oath of office, he filed no bond, and when the contract was signed he was but nineteen years old.

It is maintained by the appellants that there was no contract signed by the superintendent of streets; that because the superintendent of streets was absent at the time the purported contract was signed, he did not exercise the discretion vested in him in fixing the time of commencement and completion of the work, and that in no case did the superintendent of streets extend the time in accordance with the provisions of the statute. It is argued that Boswell did not pretend to act independently as a de facto officer, because he signed the contract in the name of the superintendent of streets; that there was no de jure office of assistant superintendent of streets, and, therefore, there