156 Mich. 178 | Mich. | 1909
This matter comes before us upon certiorari to review the order of the circuit court denying appellant’s petition for a writ of mandamus to compel payment of a paving bond issued by respondents. On August 1, 1899, a contract was entered into by the Barber Asphalt Paving Company, petitioner, and the village of Highland Park, respondent, for the grading and paving of a portion of Woodward avenue in the village of Highland Park, known as district No. 15. The contract provided that all of the work should “be done and performed to the satisfaction of the said village engineer,” and, further, that the payment of the balance of the contract price should be made “ when the said second party shall have completed all the said work to the satisfaction of the said village engineer, and when the said work shall have been accepted by the said first party,- and when the said second party shall have performed all the covenants of this contract by it to be performed to the satisfaction of the said village engineer. ”
Mr. Ashwell, the village engineer, testified:
“ In view of the fact that the Barber Asphalt Paving Company had been dilatory in getting its work started— for, although the contract was let on August 1, 1899, it was not until September 25th following that the first load of binder asphalt was delivered — it was considered about the middle of November that hard weather might set in at any time and would prevent the making of the roadway passable for some months, and that to take the men away from the roadmaking in order to remedy defects would jeopardize the completion of the roadway, and at an interview between Mr. Wright, representing the Barber Asphalt Paving Company, Dr. George R. Andrews and myself, as representing the trustees of the village of*180 Highland Park, held on the work about the middle of November, and at which interview Mr. Wright, representing the Barber Asphalt Paving Company, acknowledged that the work was not done in accordance with the contract, and that there were serious defects in the work already laid, and put forward the statement as to what effect the delay in taking the men off the roadmaking proper might have, it was therefore agreed that, if the company would press forward this work so that the roadway should be completed (without any pretense that it was completed according to the contract and with a full knowledge and understanding that defects existed in the pavement and curb and gutter and that the work was not to be accepted until these defects were remedied the following spring), they, the Barber Asphalt Paving Company, should get their money without acceptance of the work.”
In his report to the village trustees of November 20, 1899, the following appears:
“ Several defects exist in the asphalt pavement already laid as well as in the curb and gutter. In the latter they are caused mostly by the roller when finishing the asphalt. In consequence of the lateness of the season, it has been agreed that the remedying of defects, except in case of danger, should be left till spring. The subsidence caused by the sewer connections will then have shown themselves.”
On January 2, 1900, the engineer reported as follows:
“Pinal Certificate, Special Assessment District
No.. 15.
“I have to certify that the Barber Asphalt Company, as contractors for grading and paving Woodward avenue, special assessment district No. 15, are entitled to a final certificate amounting to seventy-nine thousand three hundred and eighty-seven and 67 /100 ($79,387.67) dollars. From this must be deducted amounts already paid.”
February 26, 1900, a warrant for $1,286.79 was ordered in favor of petitioner and a time warrant for $5,000 due in four months at 6 per cent, interest. These warrants were for balance due on the contract. July 5, 1900, it
“The [this] bond is issued for the object of paying balance due the Barber Asphalt Paving Company for construction of pavement in special assessment district No. 15 and is payable out of special assessment district No. 15 fund.”
After the adoption of the resolution ordering the bond, a controversy arose as to the form of the bond to be given, and petitioner filed a petition for mandamus against the president and clerk, who had been ordered to execute it. This petition set forth the contract of August 1, 1899, and that the work had been completed. The defense of the petition was assumed by the village, and in the
We fully concur in the conclusions reached by the circuit judge. The preponderance of the evidence is strongly in favor of the defendants’ position that the final warrant was given substantially as an advance payment in reliance upon plaintiff’s promise to complete the pavement in the spring in compliance with the contract. The testimony of the then village engineer, supported by numerous reputable witnesses and the records of the common council, show this clearly, and also demonstrate that from the time of making the agreement till after the giving of the bond the village authorities were importuning the plaintiff to make good its agreement. In the light of such facts, it could not reasonably be held that defendants were estopped to present their defense or had waived any of their rights. The facts of this case do not bring it within the principle of Schliess v. City of Grand Rapids, 181 Mich. 52, but, so far as the doctrine of estoppel is concerned, it is ruled by Field v. Village of Highland Park, 141 Mich. 69. See, also, Van Atkin v. Dunn, 117 Mich. 421. We see no reason why, under the
The order of the circuit court is affirmed, with costs.