47 Mich. 236 | Mich. | 1881
Plaintiff sued the city of Grand Rapids for several items, including first, for two month’s salary as police justice in 18Y4; second, for services in preparing ordinances; third, for preparing bills for the city to collect
The first of these claims was for two months’ salary which was fixed by the council at $1200 per year and made by law payable monthly. Plaintiff claims that this was due him absolutely, and the city claimed that in consideration of it he agreed to do certain things concerning a substitute. In either case, whether subject to counter equities or not, the sum claimed and payable in the first instance was fixed. Whether any force is due to the supposed contract to furnish a substitute during his absence or not is of no consequence on this issue, for plaintiff sues for a sum certain, and there is nothing in the record which would change its character as presented in evidence, so as to answer the objection that a mandamus should have been resorted to. Payment of salaries can be better enforced in that way, and officers should not be driven to an action when a summary remedy is the only one which will prevent gross injustice. See Just v. Township of Wise 42 Mich. 573; People v. Board of Auditors of Wayne 13 Mich. 233; Same v. Same 5 Mich. 223; Peterson v. Manistee 36 Mich. 8; Dayton v. Rounds 27 Mich. 82.
All of that part of the ease may be disregarded. In regard to his services in drafting ordinances it appears that the council ajjpointed a committee of its own members, to act with the city attorney, police justice and chief of police, to make a revision of the ordinances, and that in making this revision plaintiff did a large part of the work of drafting and shaping them, and spent some time in obtaining information to draw them properly.
Upon this the court instructed the jury that it was the business of the city attorney to prepare ordinances, and that he could not employ others without the authority of the council. But the court further directed the jury, that if plaintiff was employed by the committee on an understanding that he should be paid, and this was known to the council, and they accepted and adopted the ordinances, then he was entitled to a reasonable sum.
Similar remarks may apply to such services as he rendered in aiding the city to collect money of the county, which we passed upon in a former case in this court. Police Justice v. Kent Supervisors 38 Mich. 421. If he performed services beyond those connected with the taxation of costs (which belonged to his official duty), he has a claim for the reasonable value of what he did, unless intended to be gratuitous.
We are inclined to think the court did not mislead the jury in regard to money paid by mistake. It undoubtedly is plaintiff’s duty to show the mistake and overpayment. It is not, however, governed by any different weight of evidence from any other civil issue. The remarks in regard to the credit of witnesses as reported are perhaps not quite
Judgment must be reversed with costs and a new trial granted.