88 Mich. 558 | Mich. | 1891
This case comes here on declaration and ■demurrer. The demurrer was sustained in the court below.
The substance .of the declaration, as stated in plaintiffs’ ■ brief, and mainly correct, is as follows:
On the 14th day of May, 1888, plaintiffs entered into a contract with the city of Grand Rapids to improve North College avenue, which was executed in a proper manner by both parties. The improvement consisted of the grade and fill of such street from East Bridge street north to the city limits; the plaintiffs being required to furnish all material and incidental work, and according to plan, specifications, and profile on file with the board of public works. The plaintiffs, by the terms of the contract, were to commence on the 31st day of May, 1888, and complete the work on or before August 15, 1889. By the third paragraph of the contract, the time named for the completion of the work is made material, “and of the very essence of this contract; and ior each and every day the contract shall remain unperformed, after the time named for the performance thereof, the said board of public works may, in its discretion, deduct the sum of ten dollars from the amount to be paid by said second party on this contract.” The street was to be graded, as it is alleged in the declaration, 66 feet wide, and a fill was necessary at certain points of 36 feet above the surface of the adjacent premises.
It is alleged- by the plaintiffs, that in the making of .said contract the defendant undertook and agreed that the preliminary steps necessary to be taken on its part to secure the right to make such an' improvement, and in the manner called for by the contract, had been taken, and that it had the right to so contract and so improve said street. And the plaintiffs further allege that they believed that the city was acting with full authority, and .had such right, and that such -contract gave them full ■power to execute the same in every particular as they were required to do by its terms. Plaintiffs allege that -they did go on and employ a large number of men, and secured the necessary material, and commenced work thereon, and were in condition to complete the work in • every respect, in accordance with the conditions and .-terms of said contract.
*560 Plaintiffs further allege that at the time of the making of said contract, and for about a year thereafter, defendant had not secured the right from any of the pr.opertyowners adjacent to North College avenue, including one Sophie Vauderlip^s property, at the point where the same was by the terms of the contract to be filled, to fill the same as the contract required; that making the fill, as required by the contract, necessitated an encroachment upon Sophie Vanderlip, and other adjacent property-owners; that the slope of such fill, as required by the-contract and specifications, reached over upon the land of such parties; that Sophie Vanderlip obtained an injunction against the prosecut'on of the work in front of her premises from the superior court of Grand Eapids, and other property-owners, holding in the same manner as Sophie Vanderlip, asserted their rights against the execution of said contract by plaintiffs in front of their premises; that the ifijunction obtained by Sophie Vander-lip was affirmed in the Supreme Court, and by reason thereof, and of the claims- of other parties from whom said defendant had obtained no right to have said contract carried into execution, plaintiffs were delayed in the performance and execution of the contract for the period, of about one year.
The declaration alleges that after such rights were-obtained, as they were, by the city from these several parties, they completed the work in question, but never waived any of their rights to claim damages by reason of' this breach of the contract, as aforesaid, and they so notified said city and its various officials, and, in the receipt of the amount paid them by said city, refused to receive the sum in full of extra work and damages occasioned by such breach of contract, and so notified the said city. Plaintiffs allege a presentment of their - claim to the city, and that it was entirely rejected. The declaration also alleges that the board of public works and its officials desired them not to continue work on said improvement in front of the premises owned by persons from whom the city had obtained no right to have said contract carried into execution. The declaration-also alleges the knowledge on the part of the defendant that it had no right or authority to cause said College avenue to be filled, as the said contract required plaintiffs to fill the same. Various items of damage áre set out in the declaration. Plaintiffs admit that the city has-*561 paid them in orders or money the amount of the contract, price.
The declaration set forth the contract in full, in which contract the plan, specifications, and profile of the work were referred to and made a part of the contract, but the declaration did not give the plan, specifications, and profile in full. The defendant' in its demurrer attached the specifications in full of the work. This was proper pleading. They were a part of the contract, and necessarily a part of the declaration, and, not being therein given in full, it was proper for the defendant thus to exhibit them to the court, so that the whole contract might be before it. The demurrer insisted—
1. That, as a matter of law, under the terms of said contract, . the defendant did not • undertake and agree that the preliminary steps necessary to be taken by the defendant had been taken on its part, and that said defendant had the right, and had secured the right from the property-owners adjoining and adjacent to the street, to improve said street; and that the defendant did not, by such contract, obligate itself to see that said plaintiffs, were not hindered, delayed, or interfered with in carrying out such contract.
2. That the boai'd of public works had no power to-make any request that the plaintiffs should not go on with their work, or to prevent them from continuing, it, and that the delay was not caused by defendant, or any of its agents, as appears from the declaration, but by the act of the person enjoining the city and plaintiffs, from the prosecution of -said work; that, if any request, was made by such board, such action was ultra vires andl void, and not binding upon defendant, and no right of action could grow out of plaintiffs’ stopping work at the request of such board.
3. That for these reasons the declaration, as a matter of law, does not disclose a right of action against the city.
It is not claimed that the contract, by its express terms, guarantees that the city has the right to make
The fact that the board of public works requested them to desist from the work, pending the Vanderlip jitigation, in front of the premises of- owners situated in the same manner as those of Mrs. Vanderlip, cuts no figure in this case. A compliance with such request -could not make the city liable for the damages resulting from such compliance.
The cases cited by plaintiffs' counsel do not reach the case before us. I have carefully examined these cases, and find but few of them to have any connection with the point here in controversy.
In Doolittle v. Nash, 48 Vt. 441, the railroad company was ■enjoined from constructing its road upon certain lands,
“It was the business of the defendant to know before-he made the contract, and thereby induce the plaintiff to incur the expense of preparation, thaS he had the-right to have the .contract performed. If he had not-that right, then he was in fault in making the contract,, and should be liable to the plaintiff for the damages, and it is no answer to say that he supposed he had the right, and acted in good faith.”
It was intimated that, if the injunction was unlawfully obtained, the defendant had his remedy upon the? injunction bond; if rightfully obtained, then the defendant would have his remedy against the railroad company,, it being the party in fault. This decision seems to be-based upon the idea that, if the plaintiff had no right of' action against defendant, he was without remedy, and must, bear the loss, which would be unjust; and that the party in fault' would be liable to the defendant for what he was obliged to make good to plaintiff, and in the end the loss would be borne, as it ought to be, by the party-in fault. The railroad company was presumed to know whether it had acquired the right to pass over the lands,, and for that reason would be liable for the damages-resulting from its failure to obtain such right. It will be seen that no municipal corporation or its agents were-involved in the suit, and the rights and remedies discussed were those of private persons or corporations.
In Bill v. City of Denver, 29 Fed. Rep. 344, the plaintiff was employed by the city as an inspector of"
In Moore v. Mayor, 73 N. Y. 238, the action was brought for a balance upon a contract fully performed by the plaintiff for the paving of certain streets in the city of New York. The payment was resisted on the ground that the resolution authorizing the paving was not published in the Leader according to law. It was held that .the city must pay; that the act of paving these streets was within the general power of the municipality; that there was no apparent defect in the proceedings upon the journals of the common council; and that the irregularity claimed — and it was only an irregularity — was the •omission of an act in pais outside of the council chamber, and of which no record would appear in the journals of the council. It was held, under these circumstances, that an individual, dealing with the agents of the city government, should be permitted to regard the acts of the government as valid, in the absence of any apparent •defect, either in the power or the manner of its exercise.
These are the only cases cited that have any close bear
In Davies v. City of East Saginaw, 66 Mich. 37, 40, in
There is no claim in the declaration- that the city knowingly misled the plaintiffs.
The demurrer was properly sustained, and the judgment of the lower court is affirmed.
Counsel cited, in addition to the cases referred to in the opinion, the following authorities: 2 Suth. Dam. 521, 522; Dill'. Mun. Corp. § 449 (373); Whitfield v. Zellnor, 24 Miss. 663; Allamon v. Mayor, 43 Barb. 35; County of Christian v. Overholt, 18 Ill. 223; Railroad Co. v. Van Cusen, 29 Mich. 431; U. S. v. Behan, 110 U. S. 338; Steel Rail Co. v. Hinckley, 17 Fed. Rept. 584; Sullivan v. Commissioners, 114 Ill. 262; Jones v. Judd, 4 N. Y. 412; Clark v. Mayor, Id. 338; Smith v. Buffalo, 44 Hun, 156; Masterton v. Mayor, 7 Hill, 61; Blanchard v. Blackstone, 102 Mass. 343.