By
Ceockett, J.,concurring:
I concur witb Justices Wallace and Temple in tbe opinion that tbe order denying tbe motion for a new trial ought to be affirmed, and I also concur witb Justice Temple on tbe first point discussed in tbe opinion. I think tbe publication of tbe notice of intention was sufficient, for tbe reasons stated by him. Tbe notice being sufficient there appears to have been no irregularity in tbe proceeding, down to and including tbe award of tbe contract by tbe Board of Supervisors. Tbe work ordered to be done was to grade tbe street, which was equivalent to an order to grade it to tbe official grade, as we have several times decided. Tbe contractor put in bis bid to do tbe work, and tbe contract was awarded to him at a stipulated price per cubic yard. It then became tbe duty of tbe Superintendent of Streets to enter into a written contract witb tbe contractor binding the latter to tbe performance of tbe work ordered by tbe Board, at tbe agreed prices and within tbe stipulated time. In performing tbis duty, tbe Superintendent of Streets was, pro hac ■vice, tbe agent of tbe Board witb authority to execute tbe contract which bad been awarded, and no other or different contract. He occupied towards tbe Board in tbis respect tbe relation of a special agent, having a limited authority to execute tbe contract for tbe particular work specified in tbe order of tbe Board, which was to grade tbe street to tbe official grade. But it appears that, in tbe contract which *528was entered into, tbe contractor was required and undertook not only to grade tbe street to tbe official grade, but also to grade tbe roadway to tbe depth of one foot below tbe official grade; and tbe defendants claim that; for tbis reason, tbe contract was absolutely void, as wholly unauthorized and in excess of tbe power of tbe Superintendent of Streets, who bad no lawful authority to enter into a contract different from that ordered by tbe Board. But, in my opinion, the contract was not wholly void, even though it be conceded that in requiring tbe roadway to be excavated to tbe depth of one foot below tbe official grade, be exceeded pro iamto, tbe authority conferred upon him. It does not necessarily result, that tbe act of a special agent, acting under a limited authority, is wholly void, because in some particulars he has exceeded bis authority. If he has done what be was authorized to do, and something more, tbe act may be either wholly void or good so far as it was authorized, and void only for the excess, according to tbe nature of tbe act performed. If tbe act in its nature, be indivisible, tbe execution of tbe power will be wholly bad if the agent exceed bis authority. If, for example, an agent be authorized to purchase or sell a particular horse, he could not, under this authority, bind his principal for tbe purchase or sale of one half of tbe horse. On tbe other band, if tbe act performed be divisible in its nature, so that tbe part which be was authorized to perform, can be separated from tbe rest, without injury to tbe principal, the-latter will be bound by it, so far as be authorized it, and it will be void only for the excess. Thus if an agent have authority to purchase a particular farm at a specified price, and if be not only purchases that farm, at the price limited, but, in addition thereto, another farm for a further stipulated sum, tbe principal will be bound for tbe first purchase, but not for tbe last. In all tbis class of cases, tbe liability of tbe principal depends upon tbe fact whether the act of tbe agent can be so separated as to give due effect to tbe execution of tbe power without prejudice to tbe rights of tbe principal. It is obvious that tbe principal will not be damaged, if he derives, from the act of *529tis agent, all the benefit he anticipated, even though the agent attempted to bind him, in some particulars, beyond Ms authority. In other words he will have no right to complain if the act which he authorized to be done was performed according to his authority, notwithstanding the agent attempted to bind him in excess of his authority., .These are familiar principles and are fully discussed in Story on Agency, (Sections 166 to 171). Applying these principles to the case at bar, and treating the Superintendent of Streets as a special agent, acting under a limited authority, it remains to be considered whether the contract which he entered into was in its nature divisible, so that it can be upheld so far as it was authorized, and should be declared void only for the excess; or whether it is of such a nature, Mat if void in part is void in toto. The only vice in the contract is, that it required the roadway to be excavated one foot below the official grade. All the work which the Board ordered to be done was provided for in the contract, and at the price and manner agreed upon, between the Board and the contractor. But the written contract called for some additional work, to be paid for at the same rate, which the Board had not authorized to be done.
In Story on Contracts (Sec. 21), the rule by which to ascertain whether a contract is divisible in its nature or is to be deemed an entirety, is thus stated: The criterion of a divisible contract is, that the extent of the consideration on either side, is indeterminate until the contract is performed. Neither party to such a contract can claim more than an equivalent for the actual consideration on his part No specified entirety of consideration on either side constitutes a condition of the bargain, but only a certain relation and proportion between the consideration on both sides, to be ascertained on the completion of the contract.” Tested by this rule, the contract in this case is clearly divisible in its nature, and the consideration to be paid is capable of apportionment. The work to be performed was to be paid for at a certain rate per cubic yard and it was a matter easily to be ascertained, how much excavation was required *530to reduce tbe roadway one foot below tbe official grade, and bow mucb to grade tbe street to tbe official grade. Tbat part of tbe work wbicb tbe Board of Supervisors authorized to be done could readily bave been ascertained and tbe cost of it determined; and tbat part of tbe contract wbicb was valid, be tbus severed from tbat wbicb was void.
If, however, tbe contract bad related to a building wbicb tbe Board bad ordered to be erected under a contract awarded to tbe lowest bidder, who was to do tbe work according to tbe plans and specifications, for a gross sum to be paid on tbe completion of tbe building, and if tbe Superintendent in entering into tbe contract bad materially varied tbe plan of tbe building, and increased tbe gross sum to be paid, it is evident tbe contract would bave been wholly void because of its entirety, and because it was wholly incapable of apportionment. In tbe case of Dougherty v. Hitchcock, (35 Cal. 512), tbe work ordered to be done was tbe grading of a street and tbe crossings for tbe distance of several blocks, to be let out under one contract for tbe whole; but tbe Superintendent divided tbe work into several sections, and entered into a separate contract for tbe grading of each section; and this Court properly, I think, pronounced tbe contract void. No one of tbe contracts provided for all tbe work wbicb tbe Board bad ordered to be done under one contract, and tbe question of apportionment, and of tbe divisible nature of tbe contract could not therefore arise. Each of tbe contracts was void for tbe obvious reason tbat it did not include all, but only a small portion of tbe work wbicb was ordered to be done under one contract. For satisfactory reasons tbe Board bad deemed it best to let out tbe whole work under one contract, and tbe Superintendent has no authority to frustrate this purpose by cutting up tbe work into sections and letting it under separate contracts. But tbe case at bar is wholly different. All tbe work wbicb was ordered to be done was included in tbe contract, but in addition thereto, it provides for additional work to be paid for at tbe same rate. Tbe additional work, as we bave seen, and its costs, may readily be ascertained by computation *531and measurement, and tiras separated from that portion of tbe work which the Board ordered to be done, and which was done by the contractor in strict accordance with the proposal and the contract. The contract was therefor clearly severable and capable of apportionment, and was not void in toto, but only for the excess. But, in embracing in the contract additional work, not ordered to be done, the Superintendent committed an irregularity which, by the express terms of the statute, could be corrected on an appeal to the Board from the assessment. On the facts being made to appear to the Board, it might have set aside so much of the contract as provided for reducing the roadway one foot below the official grade, and have set aside the assessment, and refused to order a new one until the contractor had restored the street to the official grade. In my opinion, this was the only remedy for the property owner, and the only remedy by which the irregularity could be corrected; and the defendants, having omitted to avail themselves of this mdide of redress, are concluded by the assessment and other proceedings.
I concur with Justice 'Wallace on the points discussed in his opinion, other than those already noticed.