author: Claek, J.

text:
    VILLAGE OF ECORSE v. TOLEDO, CANADA SOUTHERN & DETROIT RAILWAY CO.
    1. Appeal and Error — Appeal from Justice’s Court — Eminent Domain.
    Under 1 Comp. Laws 1915, § 2798, the method of appealing from judgments of justices of the peace in condemnation proceedings is similar to that in other cases.
    2. Same — General Appeal — Motion to Dismiss — Void Judgment.
    .Upon a general appeal, a motion to dismiss on the ground that the judgment is void may he made.
    3. Justices of the Peace — Judgment—Entering Judgment in Condemnation Proceedings — Ministerial Act.
    Where the judgment of confirmation in condemnation proceedings was pronounced by the justice within the 40 days required by the statute (1 Comp. Laws 1915, § 2795), it was valid, although not entered upon the docket till later, since it is complete when pronounced; entering upon the docket being a ministerial act.
    4. Eminent Domain — Damages—Evidence—Admissibility.
    In proceedings to condemn, for public purposes, under 1 Comp. Laws 1915, § 2784 et seg., land belonging to a railroad company, testimony offered by defendant of its plan and intention to extend its side tracks and yards over and upon said land was improperly excluded, since defendant is entitled to compensation according to the most profitable and advantageous use it could make of the land.
    Case-made from Wayne; Codd (George P.), J.
    Submitted January 6, 1921.
    (Docket No. 54.)
    Decided March 30, 1921.
    Condemnation proceedings in justice’s court by the village of Ecorse against the Toledo, Canada Southern & Detroit Railway Company and the Lake Shore & Michigan Southern Railway Company to acquire land for street purposes. There was judgment for plaintiff, and defendant Lake Shore & Michigan Southern Railway Company appealed to the circuit eourfc. Judgment for plaintiff. Defendant appeals.
    Reversed.

      Angelí, Turner & Dyer, for appellant.
    •Louis F. Hawkins (Ignatius J. Salliotte, of counsel), for appellee.
   Claek, J.

Plaintiff village, desiring to extend one of its streets across the right of way of the Lake Shore & Michigan Southern Railway Company, herein called defendant, on August 5, 1914, instituted condemnation proceedings before a justice of the peace under the provisions, of chapter 13 of chapter 87, 1 Comp. Laws 1897, as amended. See 1 Comp. Laws 1915, § 2784 ei seq. From the judgment there defendant appealed. In the circuit court the jury found the proposed improvement and the taking necessary and awarded compensation to defendant in the sum of $1,028, and it has brought the case here for review.

At the trial counsel for defendant made a motion for dismissal, claiming that the verdict of the jury had not been properly entered on the docket of the justice, and that judgment of confirmation had not been entered by the justice within 40 days after the verdict as required by the statute, and was therefore void. See 1 Comp. Laws 1915, §.2795. The motion was denied.

We think the entry of the verdict was sufficient. Counsel for plaintiff contend that, having taken a general appeal, defendant cannot attack the validity of the judgment. By Act No. 176, Public Acts of 1903, chapter 13 of Act No. 3, Public Acts of 1895 (see section 2924, 1 Comp. Laws 1897, and section 2798, 1 Comp. Laws 1915) was amended and the method of appealing in this proceeding was made similar to that of appealing from judgments of justices of the peace in other cases. See section 14402, 3 Comp. Laws 1915. It has been held that upon a general appeal a motion to dismiss on the ground that the judgment is void may be made. See Harrison v. Sager, 27 Mich. 476.

We find that on November 18, 1915, béing within the 40 days, the justice of the peace signed in the cause a judgment of confirmation in due form upon a paper which has been returned as a part of the record. Later, after the expiration of the 40 days, but as of November 18, 1915, upon his docket, in the cause, the entry of judgment of confirmation was actually made.

■Counsel for defendant had notice of the judgment of confirmation, having been advised thereof about November 18, 1915, and on November 27, 1915, in the affidavit of appeal, stated that the judgment of confirmation had been duly entered on November 18, 1915.

We think the judgment valid and that it was pronounced within the statutory time. A judgment entered upon the justice’s minutes is not void because it was not forthwith entered upon the docket. It is complete when pronounced. Entering it in the docket is a ministerial act. See Saunders v. Manufacturing Co., 27 Mich. 520; Hickey v. Hinsdale, 8 Mich. 267.

To show its damages because of the proposed improvement, defendant offered testimony of its plan and intention to extend its side tracks and yards over and upon the property sought to be taken and its purpose and plan to put such property to such use. The testimony was excluded. We think this was error. To minimize defendant’s damages, plaintiff may not insist that the property sought to be taken be treated merely as a part of the main line of defendant’s road. Defendant was entitled to compensation according to the most profitable and advantageous use it could make of the land. If it be a fact that the land was more valuable for the proposed and additional use of yards and side tracks, then defendant had a right to have its damages assessed on that basis, and the testimony offered should have been submitted to the jury for consideration. See Chicago, etc., R. Co. v. Simons, 200 Mich. 76.

Other questions discussed are not likely to arise again. The award to defendant will be set aside and an inquest made before a new jury. Defendant will recover costs of this court.

Steere, C. J., and Moore, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    CITY OF DETROIT v. FIDELITY REALTY CO.
    1. Appeal and Error — Eminent . Domain — Powers of Supreme Court on Review.
    Proceedings for condemnation of land for public purposes are not according to the course of the common law, and the Supreme Court has not the broad power of reviewing rulings made during the course of the hearing or inquest that it has of reviewing rulings made upon nisi prius trials.
    2. Same — Evidence—Admissibility—Cause for Reversal.
    While strict rules as to admissibility of testimony are not always enforced, where prejudicial, inadmissible testimony was received and acted upon by the jury or where competent testimony going to the merits was excluded which if admitted would have changed the result, or where the record discloses that an erroneous theory of the law was adopted by the jury to the prejudice of the appealing party, this court, upon appeal, will reverse.
    3. Eminent Domain — Witnesses—Competency—Value oe Premises.
    Where a witness testified that he was familiar with land values in the locality of the premises sought to be condemned, but it developed that his familiarity was based on what he had been told by others, the exclusion of his testimony as to the value of said land was not reversible error.
    4. Same — Trial—Instructions—Value oe Premises.
    Where it appeared that the premises in question had been recently sold and a mortgage taken back for part of the purchase pricey the trial judge properly instructed the jury that the good faith of the parties to the transaction was not an issue, but that the value fixed by the transaction should be considered by them in making their award if the transaction was in all regards a bona fide one, and that the good faith was. involved for this purpose only.
    5. Same — Evidence—Inferences.

      Held, under all the circumstances revealed in this record, that it was within the province of the jury to infer that the valuation fixed in the deal was not in all regards a bona fide one.
    6. Same — Conduct oe Counsel — Trial—Value oe Premises.
    It was improper for counsel for plaintiff to persist in his attempt, by asking questions, to get before the jury the result of former condemnation proceedings after objection thereto had been sustained.
    . 7. Same — Conduct oe Court and Counsel — Curing Error.
    Conduct of counsel for plaintiff and the trial judge, although much of it is to be condemned, held, not prejudicial, where the judge gave an exceptionally fair charge and admonished the jury to disregard the incidents of the trial and be guided by the testimony.
    8. Same — Most Advantageous Use oe Premises — Question eor Jury.
    Where the land sought to be condemned was a long, narrow strip, and the most advantageous use to which it could be put was in direct dispute, the question was one of fact for the jury.'
    9. Same — Amount of Award Sustained by Evidence.
    The award of the jury will not be reversed in this court where it was within the range of the testimony, although higher than the valuation of the plaintiff, and lower than that contended for by defendants.
    10. Same — Just Compensation Rube of Damages Not Amount of Mortgage.
    The contention of defendant mortgagee that he was at least entitled to the amount of his mortgage is untenable, since where, ,as here, there are no severance damages or other circumstances to vary the rule, just compensation is measured by the fair market value of the premises, and this is neither increased nor diminished hy the fact that a mortgage has been executed on the property.
    11. Same — Improper Apportionment of Award to Be Corrected by Court.
    Where the jury awarded compensation but improperly apportioned it among defendants, tbe error, being one of law, was one which the trial court could by the terms of the act (Act No. 541, Local Acts 1903), correct by amendment.
    12. Same — Mortgagor Not Entitled to Share in Award.
    Where the proceedings took from the mortgagee his entire
    security, and the award was less than the amount owing to him, it was not within the province of the court to award a part of the money to the mortgagor and a part to the mortgagee, but the latter was entitled to have added to his award the amount awarded to the mortgagor.
    Error to recorder’s court of Detroit; Jeffries (Edward J.), J.
    Submitted January 12, 1921.
    (Docket No. 104.),
    Decided March 30, 1921.
    Rehearing denied July 19, 1921.
    Condemnation proceedings by the city of Detroit against the Fidelity Realty Company and Joseph F. Weber to acquire land for hospital purposes. Judgment for plaintiff. Defendants bring error.
    Reversed as to defendant Weber and remanded with instructions.

      Earl S. Heenan, for appellant Weber.

      William Henry Gallagher, for appellant realty company.

      Clarence E. Wilcox, Corporation Counsel, and Thomas P. Penniman and John B. Watkins, Assistants Corporation Counsel, for appellee.
   Fellows, J.

This is condemnation proceedings brought by the city of Detroit under the provisions of Act No. 541, Local Acts 1908, to acquire title to lands for hospital purposes. The city for some time has had quite pretentious plans for its hospital development. In 1908 it acquired of defendant Weber a 10-acre parcel for this purpose at $2,500 per acre. The parcel lies between Hamilton boulevard and Schmittdiel avenue. On the north of this parcel and lying between it and Taylor avenue is a strip of land 28.8 feet wide at the east end and 32.8 feet wide at the west end, extending the entire length of the hospital grounds, 811 feet. This strip of land was then owned by defendant Weber, but through some slip in the negotiations was not then acquired by the city. Something like a million dollars has been expended in erecting hospital buildings, and the plans contemplate the erection of other structures. This proceeding seeks to acquire this narrow strip. The jury found the necessity for the taking existed and made an award which we shall presently detail. Both defendants review the case here. In the main their objections are common, but in at least two regards specific objection is made on behalf of defendant Weber.

Before taking up the points made by the appellants we should give heed to the character of the proceedings and the power of this court in reviewing them. They are not according to the course of the common law, and under our former decisions this court has not the broad power of reviewing rulings made during the course of the hearing or inquest that it has of reviewing rulings made upon nisi prius trials according to the course of the common law. In Michigan Air Line Ry. v. Barnes, 44 Mich. 222, a condemnation proceeding, it was said by Mr. Justice Graves, speaking for the court:

“When the law provided how the tribunal should be constituted for these cases, and prescribed the method to be observed, it obviously contemplated that the practice respecting the admission of testimony should be as simple as a due regard to substantial justice would permit. It was not intended to leave the fate of the determination had in view to any fine-spun theories, or to the refinements which are not uncommon in trials at the circuit. They were not supposed to be necessary to the fundamental purpose or beneficial working of inquests of this nature, and no provision was . made for the certain attendance of any one presumptively qualified to deal with them. The statute plainly assumes that the jury may conduct the inquiry without the aid of any legal expert, and under circumstances in which it would be difficult, if not impracticablé, to preserve technical or hair-drawn questions in a shape to be reviewed. And were the niceties of nisi prius to be insisted on, the proceeding would speedily break down under the perplexities and embarrassments due to its own methods. The conclusion to which these and other considerations lead is that a very large discretion in admitting and rejecting testimony is left to the jury, or the attending officer, whenever there'is one, and that when the case is brought here by appeal the award cannot be disturbed on account of such decisions, unless it is fairly evident, in view of the facts and circumstances, that the ruling was not only inaccurate, but was' a cause of substantial injustice to the appellant in the matter of the result.”

Following this, in Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456, Mr. Justice Campbell, who wrote for the court, said:

“The remaining errors assigned refer to various rulings and testimony bearing upon the question of public necessity. Some of them have been raised on what is a mistaken notion of the character of these proceedings. The circuit judge attended the sittings of the jury, and admitted or excluded testimony, and charged the jury precisely as on a trial.
“The judge formed no part of this special tribunal. The statute indeed allows the judge to ‘attend said jury, to decide questions of law and administer oaths to witnesses.’ Art. 2, § 21. But the same statute which allows this allows him to designate a circuit court commissioner for the same purpose, and also allows the jury to proceed without either. Whatever the language of this statute literally construed may mean, it is very clear that any such functions must at most be advisory. The jury will undoubtedly be regarded as accepting and doing what they permit to be done. But in all such cases the Constitution, as well as the principles of the common law, makes them judges of law and fact. Chamberlin v. Brown, 2 Doug. (Mich.) 120. Their conclusions are not based entirely on testimony. They are expected to use their own judgment and knowledge from a view of the premises, and their experience as freeholders, quite as much as the testimony of witnessés to matters of opinion. And while an appellate court is bound in such cases to set aside proceedings which appear to be based on false principles, it cannot properly deal , with rulings as if they were excepted to on a common-law trial or dispose of the controversy on merely technical notions.”

Among the cases in this court where the general character of the proceedings to condemn land and the functions of this court on review are discussed will be found the following: Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350; Grand Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466; Detroit, etc., R. Co. v. Crane, 50 Mich. 182; Port Huron, etc., R. Co. v. Voorheis, 50 Mich. 506; Fort Street Union Depot Co. v. Backus, 92 Mich. 33; Fort Street Union Depot Co. v. Jones, 83 Mich. 415; Saginaw, etc., R. Co. v. Bordner, 108 Mich. 236; Marquette, etc., R. Co. v. Longyear, 133 Mich. 94; Detroit, etc,, R Co. v. Campbell, 140 Mich. 384; Boyne City, etc., R. Co. v. Anderson, 146 Mich. 328 (8 L. R. A. [N. S.] 306, 10 Ann. Cas. 283) ; McDuffee v. Fellows, 157 Mich. 664. These cases and others which might be cited demonstrate that it is a recognized rule of this court in condemnation cases that strict rules as to the admissibility of testimony are not always enforced, that ordinarily this court wili not set aside the award because of the introduction of improper evidence or improper rulings of a trial judge where one attends, but that where prejudicial, inadmissible testimony was received and acted upon by the jury, or where competent testimony going to the merits was excluded which if admitted would have changed the result, or where the record discloses that an erroneous theory of the law was adopted by the jury to the prejudice of the appealing party, this court upon appeal will reverse. As was tersely stated by Justice Grant in Fort Street Union Depot Co. v. Jones, supra:

“Appellate courts should not interfere, unless the errors complained of are such as may fairly be said to have had a controlling influence in securing the result.”

Thus in Chicago, etc., R. Co. v. Simons, 200 Mich. 76, we reversed the case because the record disclosed that the jury had not given consideration to the value of the land upon the basis of its most advantageous use, and in Village of Ecorse v. Railway Co., ante, 445, we reversed because the trial judge declined to admit evidence of the most advantageous use of the property and its value for such use, while in numerous other cases we have affirmed where the record did not disclose that the errors complained of were in any way influential in obtaining the verdict.

While numerous assignments of error are found in the record, counsel here urges them under nine heads. We are impressed that some of these may be considered together. We will pursue that course. Defendants called as a witness a real estate dealer named Calihan, who at first testified that he was familiar with land values in the locality of these premises. As his testimony developed, however, it demonstrated that his sole familiarity with such values was based on what he had been told by others. He had not operated in this vicinity, so far as the record disclosed, nor did he possess any personal knowledge of any transactions in the locality. His testimony was therefore excluded. While this court has been quite liberal in admitting testimony as to land values (see Wallace v. Finch, 24 Mich. 255; Stone v. Covell, 29 Mich. 359; Huff v. Hall, 56 Mich. 456; McCormick v. Bradbury, 187 Mich. 512), we are not persuaded that we should vacate this award for the failure to receive the testimony of this witness (see Kost v. Bender, 25 Mich. 515; City of Detroit v. Hartwick, 204 Mich. 635). Numerous witnesses were called who had operated in this locality, were qualified to testify and whose testimony was received. We shall have occasion to refer to their testimony later.

The city in making its case showed the state of the title. This showed a deed from defendant Weber to defendant Fidelity Realty Company, bearing date February 24, 1916, and a mortgage bearing date the same day from the realty company to Weber for $22,500. Defendants’ counsel complain because they say that the good faith of this transaction was permitted to be made an issue in the case; they insist that it was not properly an issue in the case, and that there was no testimony which took such issue to the jury if it was a proper one. The trial judge very carefully charged the jury, we think, that the good faith of the parties to the transaction was not an issue, but that the value fixed by the transaction should be considered by the jury in making their award if the transaction was in all regards a bona fide transaction, and that the good faith of the transaction was only involved for this purpose. We do not perceive that this was error, nor are we persuaded that the facts in the case preclude the inference that the value fixed in the transaction was not in all regards its bona fide value. The manager of the realty company testified that Mr. Weber told him the city had before that brought condemnation proceedings which, as a matter of fact, had been abandoned. He knew the premises, and, if so, knew that, this narrow strip' cut off the hospital grounds from Taylor street and would eventually be needed by the city. He claims to have paid 10 per cent, of the purchase price down and given back a mortgage for 90 per cent, of it. The valuation fixed by the testimony of the city was much below that fixed in the deal. Under all the circumstances revealed in this record, we think it was within the province of the jury to infer that the valuation fixed in the deal was not in all regards a bona fide one.

Several assignments of error have to deal with the conduct of the counsel for the city and the trial judge. There was much in the conduct of both to be condemned. If counsel for the city and the trial judge had each been as anxious to conduct the hearing In an orderly manner as they were to scintillate, much that appears in this record would have been omitted. Counsel for the city attempted to get before the jury the fact that the first jury awarded $9,000. Upon objection this was shut out, but counsel persisted in such attempt. It was improper for counsel by asking questions to get before the jury the result of the former proceedings, and counsel should have known this. But the award by the jury in the instant case was more than double the amount claimed by counsel to be the amount of the first award and the city’s testimony showed that the property was worth more than that amount. We perceive nothing upon this record justifying the treatment accorded counsel for defendants by the trial judge, but an exceptionally fair charge was given by him, and the jury was admonished to disregard the incidents of the trial and be guided by the testimony. We are not prepared to hold upon this record that defendants’ rights were prejudicially affected by this conduct.

It is insisted by defendants’ counsel that the jury did not give consideration to the value of the premises for its most advantageous use and therefore the case falls within the holding in the case of Chicago, etc., R. Co. v. Simons, supra. The difficulty with this contention lies in the fact that the testimony of the respective parties as to what was the most advantageous use was in direct dispute. The strip was a narrow one. The ends fronting on Hamilton boulevard and Schmittdiel avenue were available for stores, but the most advantageous use of the balance of this narrow strip of about 30 feet in width was a matter of dispute. The expert of the city thought its most advantageous use was for garages or a storage house, while defendants’ experts had worked out quite an elaborate plan for the erection of two-family flats. It seems to be admitted that under the building code of Detroit the strip was not available for residences fronting on Taylor avenue, but the plan contemplated the building of short streets about 30 feet long running crosswise of the strip and the erection of the two-family flats facing them. The manager of defendant realty company had procured two sets of plans for erecting houses on the strip, both of which have been rejected by the chief building inspector of the city and permits refused. A third plan had been worked out, he claimed, which was held up by these proceedings. Both the city and the defendants submitted their plans for the most advantageous use of the property and sustained their plans with testimony, the credibility of which was for the jury. The jury had both plans before them; they heard the testimony ; they visited the premises. They were justified on the testimony in accepting either plan as feasible, either plan as impractical. Their verdict indicates that they accepted the plan of using the strip for garages or a storage house rather than two-family flats facing short streets. Their verdict was higher than the valuation put on the premises by the city and considerably lower than the value contended for by the defendants, but it was within the range of the testimony and we are not persuaded that the record discloses such errors as would justify us in setting aside their valuation.

This disposes of the questions common to both defendants and we now take up the two questions specifically urged on behalf of defendant Weber. It is first insisted that defendant Weber is entitled to the full amount of his mortgage and that the award must at least equal its amount. This contention is untenable and the authorities cited do not support it, although they are applicable on the other question. This contention misconceives the rights of the parties. Private property may not be taken without “just compensation.” On the other hand the public, where the necessity for the taking is found, is entitled to acquire the title upon payment of “just compensation.” Where, as here, there are no severance damages or other circumstances to vary the rule just compensation is measured by the fair market value of the property. This is neither increased nor diminished by the fact that a mortgage has been executed on the property.

The jury awarded compensation in the sum of $18,-500 and by their verdict apportioned it as follows: To Fidelity Realty Company, owner in fee, $2,807.74; to Joseph F. Weber, mortgagee, $14,127.71; to Wayne County Loan & Realty Company, $.06; to the city of Detroit for taxes, $1,443.71; to county of Wayne for taxes, $120.78. The court later made an order striking out the separate awards to appellants, “substituting therefor the sum of $16,935.45, making it a joint award as their interest may appear.” We think this was error prejudicial to the rights of defendant Weber. The jury had fixed the compensation for the property taken; as matter of law, they had improperly apportioned it among defendants. Under these circumstances the error was one of law which the court by the terms of the act under which the proceedings were instituted could correct by amendment. But the amendment was also erroneous. There was due on the mortgage something over $25,000. The proceedings took from the mortgagee his entire security. It was not within the province of the court under these circumstances to award a part of the money to the mortgagor and a part to the mortgagee. Long v. Kaiser, 81 Mich. 518. Mr. Jones in his work on Mortgages says (2 Jones on Mortgages [7th Ed.], § 708):

“When the mortgaged property has been turned into money, or a claim for money in any way, as, for instance, by the taking of the property for public uses, or for the use of a corporation under authority of law, the rights of the mortgagee remain unaltered, and he is entitled to have the money in place of the land applied to the payment of his claim. Thus if a .street be laid out through land subject to a mortgage, although the damages be assessed to the mortgagor, the mortgagee is entitled to them, as an equivalent for the land taken for the street.”

See, also, Dodge v. Railroad Co., 20 Neb. 276 (29 N. W. 936); Sherwood v. City of LaFayette, 109 Ind. 411 (10 N. E. 89); In re Public Park, 184 App. Div. 509 (172 N. Y. Supp. 50). The case must be reversed as to the defendant Weber with instructions to amend by awarding to him the full amount awarded to him and to the realty company. We ,do not understand it to be questioned but that the taxes are a prior lien to the Weber mortgage. Defendant Weber will recover costs of this court. The city will recover costs from the realty company.

Steere, C. J., and Moore, Stone, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


text:
    CITY OF SAGINAW v. CONSUMERS’ POWER CO. CONSUMERS’ POWER CO. v. SAGINAW CIRCUIT JUDGES.
    1. Municipal Corporations — Ordinances—Amendment.
    An ordinance may not be repealed or amended without action of equal dignity to that required in its enactment.
    2. Electricity — Ordinances — Contract as to Rates — Fixed Term — Municipal Corporations.
    Where an ordinance giving a power company the right to use the streets of a city also gave it the right, subject to certain restrictions, to fix from time to time rates for commercial light and power, said right is a property right and it requires no amendment of the ordinance to permit it to fix rates for an agreed period or term or to make a binding contract with the city that it would exercise such right in a certain way.
    3. Same — Contract as to Rates Not an Amendment of Ordinance.
    No amendment of the ordinance being required to permit the company to exercise its right to make contracts in regard to rates for light and power, its contract with the city to exercise said right in a certain way would not constitute an amendment thereto.
    4. Same — Contracts — Rates — Consideration — Municipal Corporations.
    An offer of a lighting company that if the city would accept its bid for street lighting and enter into a contract therefor, it would put into effect a certain schedule of rates for residential and commercial lighting, heating, and .power, and its acceptance by the city constituted a contract between the parties, the consideration for which was the street lighting contract.
    5. Same — Contracts—Term: Contract — Renewed in Absence of Notice to Terminate.
    Where the power company agreed with the city to maintain certain commercial lighting, heating, and power rates during the term of its contract with the city for street lighting, said contract to continue for five years, and to continue for an additional period of five years unless the city should terminate it by written notice to that effect, said contract automatically continued, in the absence of said notice, for said additional period of five years, and was binding upon the parties.
    6. Same — Municipal Corporations — Street Lighting Contract— Length of Term — Ultra Vires — Statutes.
    Said contract was not ultra vires and void because in violation of 1 Comp. Laws 1915, § 3427, providing that all contracts for street lighting should be for a period of not less than 3 nor more than 10 years, since the period of operation contracted for was only 10 years, and the 7 months, antedating the beginning of the contract, allowed for installing the equipment, was only a reasonable time.
    7. Same — Street Lighting Contract — Rates for Benefit of Inhabitants.
    The provisions of said statute relate to contracts for public lighting and are not applicable to restrict the power of municipalities to contract for the benefit of its inhabitants.
    8. Same — Term Contract — Reasonable Length of Time for Private Rates.
    Since, in the absence of statutory restrictions, municipalities may contract for. the benefit of its inhabitants for a reasonable time, it cannot be said that a contract providing the rates to be paid for commercial lighting, heating, and power for a period of 10 years and 7 months is so unreasonable, as a matter of law, as to render it void.
    9. Same — Equity—Estopped to Plead Own Wrong in Securing Contract.
    A power company is estopped to plead its own wrong, or that of its predecessor, if it be a wrong, in offering to reduce the rates on light and power to the inhabitants of a city as an inducement to defeat at the polls a proposition to establish a municipal plant and to secure a public street lighting contract, after it had had the benefit for over half of the term, to defeat the executory portion of said contract.
    10. Municipal Corporations — Power to Contract — Validity of Contract — Directory Provisions of Charter.
    Where the power to execute a contract exists in a municipality, the contract is intra vires, and there is no mandatory charter, statutory, or constitutional provision offended in the execution of the same, the municipality is bound, although the corporate power is not exercised with the strict formalities provided in the charter or.statutory provision that is directory only.
    11. Same — Saginaw Charter — Provision for Competitive Bids Mandatory.
    The provision of the charter of the city of Saginaw that “no contract for the expenditure by the city of a sum exceeding $250 for any purpose whatsoever shall be entered into unless the same shall be let upon competitive bids,” is mandatory and not directory merely.
    12. Same — Electricity — Contracts — Validity — Mutuality —Saginaw Charter — Competitive Bids.
    A contract for public lighting and power other than street lighting, entered into by the city of Saginaw with a power company without obtaining competitive bids, in violation of its charter, is lacking in mutuality, not being binding upon the city, and is therefore unenforceable by the city in a suit for specific performance.
    13. Corporations — Public Service Corporations — Duty to Furnish Service — Validity of Contract.
    A public service corporation is bound, from the very nature of its business, to furnish such public service in such quantities as the public may require, and when called upon by the public for such service it cannot interpose as a defense that the contract under which it is furnishing such service lacks mutuality because a definite amount thereof is not agreed upon.
    14. Equity — Specific Performance — Partial Relief.
    Because the city is not entitled to all the relief it asks in its bill for specific performance it does not follow that it is not entitled to any, and, upon a motion to dismiss, the bill should be sustained if any ground for equitable relief is stated, even though imperfectly.
    15. Municipal Corporations — Electricity — Contracts — Equity — Specific Performance for Benefit of Inhabitants.
    Although the city could not maintain its bill for specific enforcement of its contract for light and power on its own part, because of lack of mutuality, it could enforce same so far as it related to rates to be paid by its inhabitants during the life of the contract.
    16. Same — Entitled to Maintain Suit for Benefit of Inhabitants — Multiplicity of Suits.
    The city, as representative of its inhabitants, could maintain said bill in their behalf and thus avoid a multiplicity of suits.
    17. Electricity — Courts—Jurisdiction — Public Utilities Commission — Statutes.
    The courts are not deprived of jurisdiction in the instant case by reason of the creation of the public utilities commission (Act No. 419, Pub. Acts 1919), there being no question of adequate service involved, and the commission not having acquired jurisdiction of the matter.
    18. Equity — Pleading—Prima Facie Case — Dismissal.
    Where the bill makes a case of apparent authority, it should not be dismissed because of the claim of the company that the person making the offer to the city on its behalf was not authorized to do so.
    Appeal from Saginaw; Snow (Ernest A.) and Browne (Clarence M.), JJ.
    Submitted February 2, 1921.
    (Docket No. 133.)
    Decided March 30, 1921.

      Bill by the city of Saginaw against the Consumers’ Power Company for the specific performance of a franchise contract. From an order denying a motion to dismiss, defendant appeals.
    Affirmed.
    Mandamus by the Consumers’ Power Company to compel Ernest A. Snow and Clarence M. Browne, circuit judges of Saginaw county, to set aside an order granting a temporary injunction.
    Submitted February 2, 1921.
    (Calendar No. 29,538.)
    Writ granted for modification of the order March 30, 1921.

      Bird J. Vincent (Frank A. Rockwith, of counsel), for plaintiff.

      Weadock & Weadock (John F. O’Keefe of counsel), for defendant.
   Fellows, J.

On November 30, 1908, the common council of the city of Saginaw passed an ordinance granting to the Eastern Michigan Power Company the use of its streets for the stringing of its wires, erection of poles, etc., for a period of 30 years. Section 6 of said ordinance provided:

“The said grantee shall be entitled to charge the inhabitants of the said city for electric current for light, heat and power not more than the following prices, viz. (then follows a schedule of rates for commercial light and power not important to detail):
“The grantee shall have the right, from time to time, and within the limit of prices above mentioned, to fix, readjust and regulate its prices for any and all service rendered.
“At the end of ten years from the date of the passage of this ordinance, and at the end of every ten years, thereafter during the time this ordinance shall remain in force, the prices of electric current for light, heat and power, to the inhabitants of the city of Saginaw, shall be fixed for the ensuing ten years at the request of the common council of this city, by five disinterested persons, two of whom shall be appointed by the common council, two by the grantee herein, and these four.persons shall select a fifth, and said five persons, or a majority of them, shall fix the prices to be paid aforesaid for the ensuing ten-year period, and the prices so fixed shall be just and reasonable and not in excess of the rates hereinbefore designated, and the rates so fixed shall be final.”

The Eastern Michigan Power Company accepted this franchise ordinance. The Saginaw Power Company succeeded to the rights and liabilities of the Eastern Michigan Power Company and in turn was so succeeded by the Consumers’ Power Company.

Early in 1915 the city of Saginaw, through its commissioner of light, water and sewers, advertised- for bids for street lighting, and on January 19th of that year the Saginaw Power Company, then the owner of the plant, made a bid in writing, signed by its vice-president, J. A. Cleveland, to install and maintain the street lights at $50 per lamp per year. Accompanying this proposal in a sealed envelope was the following communication:

“January 19th, 1915.
“To the Commissioner of Light, Water, and Sewers,
“Saginaw, Mich.
"Sir: In the event of the council accepting our bid for furnishing electrical energy for lighting the streets, alleys, and public places of the city of Saginaw, and entering into a contract for the same, we will put into effect on the execution of the contract and maintain during the term of said contract, the following schedule of rates for residential and commercial lighting, heating and power (then follows a schedule of rates lower than the maximum rate of the ordinance and lower than the rates then in force) :
“Nothing herein contained shall in any manner restrict, alter or affect the right of the city to secure the fixing of prices for electrical energy for light, heat and power, .as provided in franchise ordinance No. 119 of the city of Saginaw, the same being the franchise ordinance under which the contractor is operating.
“Yours respectfully,
“Saginaw Power Company,
“By J. A. Cleveland,
“Vice-President.”

Some of the citizens of Saginaw were at this time agitating the question of a municipally owned electric lighting plant. The commissioner of light, water and sewers in reporting to the council the bid for street lighting and the communication with reference to commercial lighting and power above quoted noted this agitation, but at the same time called attention to the fact that the proposal for street lighting was lower than the estimates of the city engineer and of Prof. Cooley, and that the proposal for a new schedule for resident and commercial lighting and power was as low or lower than the rates in other Michigan cities, with one possible exception. He, however, recommended that an election be held February 17th to vote on the question of a municipal plant, and that in the event such proposal did not carry at the election that the city enter into a contract with the power company for street lighting on March 1st “so that new resident, commercial and power rates may take effect on that date.” The election was called and held, resulting in the defeat of the project for a municipal plant by substantially a two-to-one vote. Thereupon the contract for street lighting was entered into by the city and the power company. It bears date March 1,1915. By the terms of the contract the power company was to proceed with diligence in installing the equipment so that the street lighting would be available October 1st. The power company also executed and delivered to the city the requisite bond in the sum of $10,000. Article 3 of the contract is as follows:

“Term of Contract. The provisions of this contract shall go into force and effect on the first day of October, 1915, and shall be binding for a period of five years; that is to say, until the first day of October, 1920; and shall be binding for an additional period of five years from and after the first day of October, 1920, unless the city, on or before the first day of April, 1920, shall notify in writing the contractor that the provisions of this contract shall terminate at the end of the five-year period, viz., the first day of October, 1920, and unless such writteii notice is given as herein provided, by the city to the contractor, all the terms and conditions of this contract shall be binding upon the parties hereto until the first day of October, 1925.”

On March 1st, the date of the contract, the power company put in. force the schedule of rates enumerated in its communication to the city of January 19th, and on the 1st of October the equipment had been installed and the power company commenced to furnish the city with light for its streets. It has since furnished such street lighting at the rate agreed upon and no question arises as to the street lighting contract or its performance except as it may be incidental to the question here involved.

On October 22, 1920, the Consumers’ Power Company, then owner of the plant, sent a communication to the council of the city stating its claim that the communication of January 19, 1915, was not binding upon it, giving its reasons for such claim, and advising the council that from and after October 1st a schedule of rates contained in the communication would be charged for commercial lighting and power. This schedule of rates was higher than the one then in force, but not higher than the maximum fixed by the ordinance of November 30, 1908.

Shortly after receiving this communication the city filed its bill in the circuit court for Saginaw county against the Consumers’ Power Company, setting up in detail the transactions and dealings between the city and the power company and its predecessors, to which bill was attached numerous exhibits. It is the claim of the city, briefly stated, that the proceedings we have detailed constituted and made a contract binding the power company to furnish the city and its inhabitants, with commercial light and power until October 1,1925, at the rates fixed in the communication of January 19,1915 ,* that the enforcement of the rates fixed in the communication of October 22,1920, would cost the city an extra thousand dollars a month for its commercial light and power and its inhabitants many thousands of dollars. It also insists that if all formalities have not been complied with in making the agreement that by reason of the fact that the rates fixed in the communication were sufficiently attractive to its citizens to cause them to defeat the plan for municipal ownership, that for the same reason-it did not insist upon having the rates- fixed by arbitration in 1918 for a period of 10 years following as it had a right to do under the ordinance, and because of the further fact that the power company has had the exclusive benefit for all these years of the patronage and business of the city and its citizens, it should now be estopped to question the validity of the contract or its existence or the proceedings leading up to and attendant upon its execution. The bill seeks specific performance of the contract and injunction to restrain the putting into force of the rates set out in the communication of October 22, 1920. The power company made a motion to dismiss this bill in the nature of a demurrer and also filed an answer. Upon filing the bill an order to show cause why a temporary injunction should not issue was entered and served. The motion to dismiss the bill and the return to the order to show cause came on to be heard before Judges; Snow and Browne and both matters were fully argued. The motion to dismiss was denied- and a temporary injunction was issued. We granted leave to appeal from the order overruling the motion to dismiss (No. 29,537) and at the same time issued an order to show cause directed to the circuit judges requiring them to show cause why mandamus should not issue directing them to set aside the order for a temporary injunction. (No. 29,538). Both cases were placed at the foot of the January docket and ordered to be heard together. They were argued together, briefed together and will be disposed of in one opinion. In disposing of them we shall bear in mind that, in considering the motion to dismiss, the bill alone is before us and we must accept its allegations as true. In the mandamus case the full record and the return of the circuit judges are before us. We shall not follow the order adopted by counsel in their briefs but will give consideration to all questions discussed. This will require a somewhat extended opinion as many questions are raised and all are pressed upon the court with vigor and ability.

We agree with counsel for the power company that an ordinance may not be repealed or amended without action of equal dignity to that required in its enactment. Chicago, etc., R. Co. v. City of Chicago, 174 Ill. 439 (51 N. E. 596); 2 Dillon on Municipal Corporations (5th Ed.), § 571. It does not follow from this that the municipal action may not take another form as is pointed out by Judge Dillon in the section cited, nor is if necessary to here determine just what form such action should take, as we do not agree that any of the proceedings set out in the bill constituted an amendment of the ordinance of November 30,1908. By that ordinance the predecessor of the defendant power company was given the use of the streets of the city, and, subject to the clause fixing the maximum rates and the one providing for arbitration, was given the right to charge for commercial light and power rates which it might from time to time fix. This was a property right and it required no amendment of the ordinance to permit it to fix- such rates for an agreed period or term or to make a binding contract with the city that it would exercise such right in a certain way, nor would such contract operate as an amendment of the ordinance. If there was a binding agreement between the city and the power company as to the exercise of this property right in a certain manner, a question we shall presently consider, it. was no more an amendment of the ordinance than would be a contract made with a manufacturing company to furnish it with power and light at an agreed rate for an agreed term.

We cannot follow counsel for the power company in their contention that the communication of January-19, 1915, having reference to commercial light and power, was a gratuity simply, formed no part of the contract between the parties, and is not binding on the company. It is true that its terms were not incorporated in the street lighting contract. But the proposal did not contemplate that they should be. It reads:

“In the event of the council accepting our bid” for street lighting “and enter into a contract for the same, we will put into effect on the execution of the contract and maintain during the term of said contract the following schedule of rates for residential and commercial lighting, heating and power.”

This was an offer on the part of the power company and the corporate action of the city accepting the bid for street lighting and directing the execution of the street lighting contract and its execution operated as an acceptance of the offer and constituted a contract between the parties. Its consideration was the street lighting contract, presumptively a valuable one for the power company, and the proposal contemplated that upon its execution the proposal for commercial light and power automatically became a part of it. The rates provided in it were in fact at once put into effect by the power company. The two proposals were sent together and were a part of the same transaction and are to be considered together. Sutton v. Beckwith, 68 Mich. 303; Cooper v. Pierson, 212 Mich. 657; Baller v. Spivack, ante, 486, handed down herewith; Kuennan v. Guaranty Co., 159 Mich. 122. The last-cited case involved a contract with a municipal corporation. The contract had not been formally executed by the contractor, but the bond had been. It was there said:

“Some reference is made to the fact that the construction company did not formally execute the written agreement. It did submit its proposal to do the work and it gave a bond conditioned for the performance of the work, in which reference is made to ‘the foregoing contract.’ It would appear from the printed record that the proposal, contract, and the bonds were so attached, and by references in each were so connected, as to constitute practically one complete transaction. The construction company entered upon the work and built the sewer under the contract. We hold there was a contract within the meaning of the statute presently to be referred to.”

In Henderson Water Co. v. Trustees, 151 N. C. 171 (65 S. E. 927), the court had before it an action which had been brought by the water company to recover on the quantum meruit for water furnished free to the public schools. By the franchise and contract this was to be done. Disposing of the case the court said:

“If the plaintiff consented and agreed to it for the consideration furnished at the time by the town, what could vitiate this benefit? Regardless of how this might be determined in an action between other parties, we do not think the plaintiff ought to be permitted to recover as upon a quantum meruit for water already furnished under its stipulation for free water. When the ordinance of the town was accepted by the plaintiff, the execution of the contract was complete; by it valuable rights were granted the plaintiff and important duties imposed. An acceptance of those rights is an assumption of those duties. As it is a contract which binds the town not to interfere with those rights, so likewise it is one which binds the plaintiff to the discharge of those duties.”

Until October 1, 1920, the power company maintained the rates for commercial lighting and power enumerated in the communication of January 19, 1915. It is insisted by it that if there was a valid contract, which it denies, that it has fully complied with it and that it is at an end; that the contract, if one existed, terminated at that time; and that under the authority of Brady v. Insurance Co., 11 Mich. 425, and Ladies of the Maccabees v. Surety Co., 196 Mich. 27, it required a new contract, a new meeting of the minds to bind the parties for any further period. The later of these cases but followed the earlier one. Both are clearly distinguishable from the instant case. In the earlier of these cases we said:

“We have no doubt that each renewal of the policy was a new contract. Each was upon a new consideration, and was optional with both parties. At the expiration of the year over which the original policy extended, the obligation of the insurer was ended, and it was only by the concurrence of the will of both parties that the obligation could be continued.”

In the later one it was said:

“Under the stipulations of the bond in the instant case, the renewal did not automatically take place. The plaintiff had to apply for, and the defendant accept, a continuance of the obligation. Neither could compel action on the part of the other. When the plaintiff applied for, and the defendant accepted the application, both parties became bound for a new term. It was a new contract; its conditions were the same as the original bond, but it covered a new period, was for a new consideration, and sprang into existence by the affirmative action of both parties.”

In the instant case the power company in its proposal agreed to put into force and maintain the rates “during the term of said contract.” We have quoted the article of the agreement controlling its term. A reference to it discloses that it continued until October 1, 1925, unless the city on or before April 1, 1920, terminated it by written notice. The contract automatically continued unless terminated by affirmative action. Neither party, was required to take any affirmative action in order to make it a binding contract until October 1, 1925. The distinction between the cases cited and the one before us, we think, is clear. We hold that the term extended to October 1,1925, and in the absence of the written notice, optional with the city to give, the parties were bound until that time.

This leads us logically to consider whether the contract as thus construed is ultra vires under section 3427, 1 Comp. Laws 1915. The portion of this section which is invoked and which we shall now consider reads as follows:

“Provided, That all contracts for lighting such cities or villages, as hereinbefore provided, shall be for a period not less than three nor more than ten years.”

There is language in a further proviso following the one just quoted which has a bearing on another feature of the case to which we shall presently refer, but which is not necessary now to quote. The city and the power company have both treated the street lighting contract as valid, and in this proceeding it is not sought to litigate the right of the power company to charge, or the liability of the city to pay the rates therein agreed upon. Its validity is, however, indirectly involved. Manifestly if the street lighting contract is ultra vires and void it cannot furnish a valid consideration for another contract or another part of the same contract. We understand this to be the attitude of counsel in approaching the question now under consideration, and we do not understand that we are asked to determine its validity for the purpose of relieving either of the parties from its terms. Under these circumstances it is not a moot question but requires our consideration.

It will be borne in mind that the contract is dated March 1, 1915. It provides a period of seven months in which the company is' to install its equipment and a 10-year period for operation, terminating October 1, 1925. It is pointed out by counsel for the power company that the hands of the city are thus tied for a period of 10 years and 7 months, and it is claimed that this is ultra vires of the municipality. Counsel rely principally on City of Somerset v. Smith, 105 Ky. 678 (49 S. W. 456), to sustain this contention. This case has been cited many times by courts and textbook writers and it is possible we would not be inclined to disagree with the result reached as applied to the facts there before the court. The constitution of Kentucky prohibited municipalities from granting franchises or making contracts in reference thereto for a term exceeding 20 years. The defendant had an existing franchise for 10 years expiring in 1900. In 1897 the city granted him a further franchise to begin at the expiration of his then existing franchise and to run for 20 years from that date. In that case the equipment was already installed, no time was necessary to prepare for the execution of the franchise and it was patent that the proceedings were designed to circumvent the constitutional inhibition. We are not convinced that the Kentucky court has overruled this holding in the later cases as contended by counsel for the city, although the following language was used in the case of City of Princeton v. Power Co., 166 Ky. 730 (179 S. W. 1074):

“The purchaser of a franchise should have a reasonable time, before the beginning of the term of his franchise, to prepare the necessary machinery and fixtures to enable him to exercise his franchise in a way beneficial to himself and the patrons of the operations of his franchise; but the time should not be so great as to make it apparent that the arrangement looks more to the benefits of the purchaser of the franchise than it does to those of the public.”

And in S. R. Schaff & Co. v. City of LaGrange, 176 Ky. 548 (195 S. W. 1097), the court had before it both a franchise and a contract. The franchise was for the term of 20 years while the contract was for 20 years after the lights were turned on, which was some 4 months after its execution, and the court held that the contract was not entirely void but was valid and enforceable for the period of the life of the franchise.

The New Jersey court has had before it the precise question here involved under a similar statutory provision. In Van Giesen v. Bloomfield, 47 N. J. Law, 442 (2 Atl. 249), it was said by that court:

“The validity of the contract is also assailed because it was executed August 1, 1888, and by its terms is made binding for a period of ten years from the 1st day of January, 1884. This is alleged to be in contravention of the provision of the act of 1881, that no contract shall be made for a longer period than ten years in any one term. Where, as in this case, it was necessary for the water company to construct works to furnish the requisite supply of water, it must have been within the contemplation of the law-maker that a reasonable time would be allowed for the contract to begin. It could not reasonably be supposed that any company would incur the expense incident to such an undertaking without a contract first executed with the municipality to be served. The substantial feature of the restriction is that no more than ten annual tax levies shall be contracted for at one time. The granted power has not in this respect been overstepped.”

Counsel for the city also cite State v. Gas Co., 69 Kan. 45 (76 Pac. 447). We do not perceive that this case is applicable. The case and the authority upon which it is based (Gormley v. Day, 114 Ill. 185 [28 N. E. 693]) have to deal with ordinances and both are bottomed upon the power of a municipality to repeal ordinances, a doctrine not applicable to binding municipal contracts. This leaves the Kentucky and New Jersey cases as the only ones precisely in point from courts of last resort on the question now before us which the diligence of counsel has brought to our attention. Such independent investigation as the limit of time at our disposal has permitted has not revealed others. Cases applicable by analogy will be found. There are numerous cases where contracts and franchises have been held to be void because in excess of the statutory or constitutional period, but they do not involve the question of whether the utility may have a limited time, a reasonable time, in which to install equipment in addition to the statutory or constitutional limit of time. The question is an open one in this jurisdiction. We must announce the rule applicable here. We hold that the provision of the statute above quoted is not offended against where the contract for service is for 10 years, and a reasonable time, and but a reasonable time, antedating the beginning of the contract is provided for in which to install the equipment.

The provision we have quoted inhibits contracts for public lighting and is not restrictive of the power of the municipality to contract for the benefit of its inhabitants. Where there is no statutory restrictions upon the term for which contracts may be executed, the courts and textwriters generally agree that a contract for a reasonable time may be made. What is a reasonable time has been the subject of some disagreement, but we are satisfied that the period here involved, 10 years and 7 months, is not so unreasonable that we should so hold, as matter of law, or that we should hold that the portion of the contract which is for the benefit of the inhabitants of the city is void. On the contrary we are of opinion that it is enforceable in their behalf.

But it is urged by counsel for the power company that light and power furnished the city in addition to the street lighting is within the provision of the statute ; that electricity is used to light its public buildings and that power is furnished for its municipal activities, and that this is public lighting within the inhibition of the statute; and that here the contract for such light and power covers a period of 10 years and 7 months and, must fall as ultra vires. We do not regard it as important to here determine this question as the contract for furnishing light and power to the city as a consumer will be disposed of in another branch of the case.

The argument is made that the offer to furnish to the inhabitants of the city light and power at a reduction from the then prevailing rates on condition that the city enter into a street lighting contract influenced the deliberations of the council, was an unlawful inducement to the city to enteh into the contract, was no part of the advertisement for bids so that other bidders might know all the benefits to be received, by the contract, is against public policy and renders the contract void and unenforceable. This contention would have great, if not irresistible force, if it was being urged upon us by a competitive bidder (Louchheim v. Philadelphia, 218 Pa. 100 [66 Atl. 1121]), or by a taxpayer (Inge v. Board of Public Works of Mobile, 135 Ala. 187 [33 South. 678]; Diamond v. City of Mankato, 89 Minn. 48 [93 N. W. 911, 61 L. R. A. 448]; Le Tourneau v. Hugo, 90 Minn. 420 [97 N. W. 115]), or by the attorney general (Attorney General, ex rel. Allis-Chalmers Co., v. Detroit Lighting Com’n, 155 Mich. 207). But we do not think the power company may be now heard to urge its own wrong, if it be a wrong, to defeat the executory portion of the contract after it has had the benefit of the executed portion of it during its profitable years. Let us recall the circumstances under which the contract was made: The power company was then in absolute control of the lighting and power situation at Saginaw; it had no competitors; the citizens were considering a municipally owned plant which, if erected, took from the power company its street lighting business and made a competitor for commercial lighting and power; the city engineer and Prof. Cooley had advised the city as to the probable cost of street lighting under municipal ownership; the authorities had investigated the cost to consumers of light and power in other cities; and the power company undoubtedly knew that the city, was armed with this information, and would not contract for light and power for itself or its citizens except at a reasonable rate. The defeat of municipal ownership, the contracting for a period of 10 years for street lighting and commercial light and power, would give the company virtually a monopoly of the business in its line for that period. Such a contract in a city of the size of Saginaw was of great value to the company. There were, and the power company must have known there would be, no competitive bidders. With this as the situation it made its bid for lighting the streets and accompanied its bid with its proposal to furnish commercial light and power at reduced rates from the then prices. Under these circumstances if the proposal for furnishing commercial light and power was an improper one and prejudicially operated upon the minds of the members of the council it does not lie with the power company to so contend after it has had the benefit of over half of the term of the contract and is called upon to perform the executory portion thereof. Under these circumstances it is estopped to plead its own wrong to defeat the executory portion of a contract thus obtained by it or its predecessor.

In the statute above cited (1 Comp. Laws 1915, § 3427) and following the provision hereinbefore quoted is found the following:

“And provided further, That such contract shall be entered into in the manner prescribed by the charter of such city or village for the letting of contracts for public lighting.”

The charter of the city of Saginaw contains the following provision:

“No contract for the expenditure by the city of a sum exceeding $250 for any purpose whatsoever, shall be entered into unless the same shall be let upon competitive bids in the manner herein described.”

The contract between the city and the power company for lights other than street lights and for power was not let at a competitive bidding and the facts set up in the bill and the records before us demonstrate that the contract required an expenditure by the city of more than $250 per month and a very large sum covering the period of the contract. Without such competitive bidding, could a valid contract be entered into between the power company and the city as a consumer? We must, in approaching this question, have in mind that we are here dealing with only the executory portion of this contract, and at present we are only considering whether the city as a consumer of light and power has obligated itself by a binding contract to take such light and power from the power company at the agreed rate until October 1, 1925.

That a municipal corporation having the power to do a certain act may bind itself, although in the exercise of such power it does not strictly observe the formalities prescribed by its charter — that a city which has the power to contract and enters into a contract intro, vires, but the infirmity in the corporate action lies only in the defective execution of the power possessed, is nevertheless bound — will be found to be demonstrated by a long line of authorities. Some of these cases base decision on the ground of estoppel, others on the ground of ratification, and others evidently upon the ground that certain charter provisions as to formalities in the execution of the power are directory. Among the numerous cases see Edwards v. City of Kirkwood, 147 Mo. App. 599 (127 S. W. 378); Peterson v. Mayor, etc., of New York, 17 N. Y. 449; Aspinwall-Delafield Co. v. Aspinwall Boro, 229 Pa. 1 (77 Atl. 1098); Pope Manfg. Co. v. Granger, 21 R. I. 298 (43 Atl. 590); Hanson v. Inhabitants of Dexter, 36 Me. 516; City of Mt. Vernon v. State, 71 Ohio St. 428 (73 N. E. 515, 2 Ann. Cas. 399); State v. City Council, 19 Mont. 518 (49 Pac. 15); City of Colorado Springs v. Colorado City, 42 Colo. 75 (94 Pac. 316); and our own cases, among others being Carey v. City of East Saginaw, 79 Mich. 73; Coit v. City of Grand Rapids, 115 Mich. 493; Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 480; Belding Land & Improvement Co. v. City of Belding, 128 Mich. 79.

These cases and many others we have examined, we think, sustain this rule: Where the power exists in the municipality, where the contract is intra vires, and there is no mandatory charter, statutory, or constitutional provision offended, the municipality is bound, although the corporate power is not exercised with the strict formalities provided in a charter or statutory provision that is directory merely.

Is the provision of the charter of the city of Saginaw now under consideration a mandatory or a directory provision? The provision requiring competitive bidding is one common to most municipal charters. It is a provision designed for the protection of the public. Speaking of such provisions, it is said in 20 Am. & Eng. Enc. Law (2d Ed.), p. 1165:

“The object of such provisions is, it has been said, to ‘prevent favoritism, corruption, extravagance, and improvidence’ in the awarding of municipal contracts, and they should be so administered and construed as fairly and reasonably to accomplish such purpose.”

That a provision requiring competitive bidding is mandatory, that the municipality is not bound by contracts made in defiance of it, finds support in the great weight of authority and is in accordance with the holdings of this court. Among the many cases see Zottman v. San Francisco, 20 Cal. 96; Richardson v. Grant County, 27 Fed. 495; Brady v. Mayor, etc., of Neiv York, 16 How. Prac. 432; Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406 (54 N. E. 372); La France Fire Engine Co. v. City of Syracuse, 68 N. Y. Supp. 894; Smeltzer v. Miller, 125 Cal. 41 (57 Pac. 668); Springfield Milling Co. v. Lane County, 5 Or. 265; Cawker v. Paving Co., 140 Wis. 25 (121 N. W. 888). We do not by citing these cases thereby approve of all that was said in all of the opinions. The case of Attorney General, ex rel. Allis-Chalmers Co., v. Detroit Lighting Com’n, supra, is illustrative of the holdings of this court on the subject.

The city was not, and is not, bound by its contract made with the power company without competitive bidding and in violation of the mandatory provision of its charter. Not being bound by the contract it cannot by bill for specific performance compel the power company to perform a contract that lacks mutuality. A public service corporation is bound from the very nature of its business to furnish such public service-in such quantities as the public may require, and when called upon by the public for such service it cannot interpose as a defense that the contract under which it is furnishing such service lacks mutuality because a definite amount thereof is not agreed upon. We do not use the term “lack of mutuality” in this sense. But where the city was not bound from the execution of the contract to perform its terms or any of them, then there is a lack of mutuality, and it is to this lack of mutuality that we here refer.

We have thus far under this head considered the rights of the city as a consumer of commercial light and power. We have reached, the conclusion that it may not as such consumer of commercial light and power maintain this bill for the specific performance of a contract by the terms of which it is not bound. By the bill no question of discrimination is raised and relief is solely sought by virtue of the contract. The contract being an unenforceable one, the city as an entity, as a consumer of power, is without relief by way of specific performance on the facts stated in the bill.

But it does not follow that the city may not maintain this bill on behalf of the public, on behalf of its citizens, on behalf of the consumers of commercial light and power. We have already pointed out that contracts for private commercial lighting and power do not fall within the inhibition of section 3427, 1 Comp. Laws 1915, and that the contract was a valid and enforceable one so far as it relates to the inhabitants of the city. Because the city is not entitled to all the relief it asks it does not follow that it is not entitled to any. Upon a motion to dismiss, the bill should be sustained if any ground for equitable relief is stated, even though imperfectly. Watson v. Wagner, 202 Mich. 397; Dewey v. City of Flint, 205 Mich. 195. We think the city as representative of its inhabitants may maintain this bill in their behalf and thus avoid a multiplicity of suits. In Muncie Natural Gas Co. v. City of Muncie, 160 Ind. 97 (66 N. E. 436, 60 L. R. A. 822), the court, speaking through Mr. Justice Gillett, said:

“As applied to this case, it is a matter of public expediency that by one suit rights shall be established for the time that the injunction has to run, instead of hundreds of the inhabitants of the city being each compelled to sue to vindicate his right, or otherwise to submit to a small but annoying injustice.”

See, also, 5 Fletcher, Cyclopedia Corporations, § 3330; Cumberland Telephone & Telegraph Co. v. City of Hickman, 129 Ky. 221 (111 S. W. 311); City of Wheeling v. Gas Co., 74 W. Va. 372 (82 S. E. 345).

That the courts are not deprived of jurisdiction of this controversy by reason of terms of Act No. 419, Public Acts 1919 (the act creating the public utilities commission), is, we think, clear. There is no question of adequate service involved and the commission has no acquired jurisdiction of the matter as was the case, of Oceana Farmers’ Mutual Tel. Co. v. Telephone Co., 205 Mich. 662. In section 4 of the act above cited is found the following provision:

“In no case shall the commission have power to change or alter the rates or charges fixed in, or regulated by, any franchise or agreement heretofore or hereafter granted or made by any city, village or township.”

See, also, City of Monroe v. Railway Co., 187 Mich. 364.

It is insisted that Mr. Cleveland^ who signed and sent the communication of January 19, 1915, was not authorized so to do by the power company. The bill makes a case of apparent authority and should not be dismissed for this reason.

It follows from what we have said that the order overruling the motion to dismiss the bill (case No. 29,537) must be affirmed and the case remanded for a hearing upon such testimony as the parties may see fit to introduce. It also follows that there was no abuse of discretion on the part of the circuit judges in granting a temporary injunction restraining the;r collection of the new rates from the inhabitants of the city, consumers of light and power, but that the injunction should be modified so as to eliminate the city as a consumer of commercial light and power from its terms and benefits. If necessary a mandamus will issue in case No. 29,538 compelling such modifications. The costs of these cases will abide the final outcome.

Steere, C. J., and Moore, Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    DULANY-VERNAY CO. v. KALAMAZOO STATIONERY CO.
    1. Sales — Offer and Acceptance — Reasonable Time.
    Where no time is fixed for its acceptance, an offer for the sale of goods expires at the end of a reasonable time without any affirmative act of the parties.
    2. Same — Reasonable Time — Question of Law.
    Where the facts are not in dispute, what is a reasonable time is to be determined as a matter of law.
    3. Same — Delay—Acceptance—Reasonable Time.
    Where an offer to sell paper at a certain price was made on March 20th, to be used as the basis of a bid to be opened on April 4th, a delay of 63 days from that date in accepting said offer, paper in the meantime having advanced 150 per cent., was so unreasonable as to require the court to determine, as a matter of law, that the offer had not been accepted within a reasonable time.

      4. Same — Former Transaction — Effect.
    That in 1914 plaintiff delayed even longer in accepting the offer, cannot be considered as binding in the present instance, since the conditions were not similar, the price at that time instead of fluctuating being steady, and defendant might decide to make the sale, if advantageous, although not bound to do so.
    5. Same — Single Transaction Insufficient to Establish Custom.
    While a protracted course of dealing between the parties may be considered, where the question of construction by them is involved, a single isolated previous transaction does not fall within the rule making commercial transactions between parties happening in the same way day after day indicative of what constitutes reasonable time and what is so considered and treated by them; one isolated transaction being insufficient to establish a custom.
    Error to Kalamazoo; Weimer (George V.), J.
    Submitted January 21, 1921.
    (Docket No. 107.)
    Decided March 30, 1921.
    Assumpsit by the Dulany-Vernay Company against the Kalamazoo Stationery Company for breach of an alleged contract for the sale of paper. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Jackson, Fitzgerald & Dalm, for appellant.

      Mason & Sharpe, for appellee.
    Plaintiff, desiring to make a bid to the commissioners of the District of Columbia for furnishing certain supplies for the fiscal year beginning July 1,1916, wrote defendant March 16th asking for quotation of prices and inclosed a portion of the specifications, together with samples of paper, to be used in the schools of the district. The specifications contained the information that bids were to be opened April 4th. Defendant answered March 20th offering to furnish one of the items, 150,000 pencil pads at $22 per thousand. No reply to this offer or letter was received by defendant until June 9th when it received a letter from plaintiff dated June 7th informing it that plaintiff had been awarded the contract bn this item. Defendant at once wired that it could not accept the contract as paper had materially advanced. Correspondence followed; plaintiff executed its contract with the commissioners pursuant to its bid, was unable to furnish the pads, and as a result not only lost its profit but also was required to compensate the commissioners for the difference between the bid and the market price of the pads. For the recovery of these amounts it brings this action. The facts were not disputed, most of them were stipulated. By the stipulation it appears that paper is a product the market value of which is a fluctuating value. The general manager of defendant testified without dispute that paper was selling for 2 cents a pound on March 20th, the day the offer was made, and at 5 cents per pound on June 9th, the day the letter in reply to the offer was received, nearly three months later.
    At the close of the case both parties moved the court for a directed verdict; both motions were overruled and the case was submitted to the jury who rendered a verdict for the defendant. This verdict was permitted to stand against a motion for a new trial and one for judgment for the plaintiff non obstante veredicto.

   Fellows, J.

(after stating the facts). We are persuaded that the trial judge should have directed a verdict for the defendant. Where no time is fixed in the offer for its acceptance, it expires at the end of a reasonable time. 9 Cyc. p. 291, 13 C. J. p. 297; and when such reasonable time has elapsed the offer is withdrawn without any affirmative act of the parties. Bowen v. McCarthy, 85 Mich. 26. Where the facts are not in dispute, what is a reasonable time is to be determined, as a matter of law. Oakland Motor Co. v. Fidelity Co., 190 Mich. 74; Bayer v. Winton Motor Car Co., 194 Mich. 222; Burton v. Ladd, 211 Mich. 382. The last-cited case is, we think, controlling of the one before us. In that case we held that a delay of 51 days in accepting, an offer to lease was, under the facts of that case, so unreasonable that the court should hold, as matter of law, that the offer had expired. Each case must, of course, be controlled by its particular facts. But the facts of the instant case are much more favorable to the offerer than were the facts in the Burton Casé in this, that there the subject-matter of the offer was a lease of real estate; here the subject-matter of the offer was a commodity having a fluctuating value, changing from day to day.

.The parties understood that the offer, if used at all, was to be used as a basis of a, bid to be opened April 4th. Undoubtedly the reasonable time for acceptance did not begin to run until that date. But 63 days, over two months, elapsed after that date before plaintiff even acknowledged receipt of, or communicated with defendant with reference to, its letter of March 20th. In the meantime the market value of the commodity had risen 150 per cent. When dealing in a commodity of fluctuating value this delay was so unreasonable as to require the court to say, as matter of law, that the reasonable time in which to accept the offer had expired.

But plaintiff’s counsel insist that in 1914 defendant sold similar supplies to plaintiff for the same purpose, that the delay then was greater than in the year 1916, and that the 1914 transaction should be considered as a similar transaction and have a bearing on the transaction in hand. The record discloses the transaction of 1914, and in some regards it was quite dissimilar from the one of 1916. To illustrate: In the transaction of 1916 no word of any kind was sent by plaintiff to defendant from the time it asked to be quoted prices on March 16th until its letter of June 7th, while in 1914 there was considerable correspondence and plaintiff advised defendant as to when the commissioners might be expected to act. In 1916 the price of paper was going up by leaps and bounds; in 1914 the price was steady as the undisputed testimony shows. Defendant might well have been willing in 1914 to make an advantageous sale of its product whether it was bound so to do or' not. But be that as it may, the one isolated transaction of 1914 did not establish a custom. While a protracted course of dealing between the parties may be considered where the question of construction by the parties is involved, a single previous offer and acceptance cannot be made to serve the purpose contended for. A single isolated previous transaction does not fall within the rule making commercial transactions between parties happening in the same way day after day indicative of what constitutes reasonable time and what is so considered and treated by them.

The judgment must be affirmed.

Steere, C. J., and Stone, Clark, and Bird, JJ., concurred. Moore, Brooke, and Sharpe, JJ., did not sit.


text:
    HASSBERGER v. GENERAL BUILDERS’ SUPPLY CO.
    1. Judgment — Res Judicata.
    The defense of res judicata is not available unless there has been an adjudication, a judgment or decree, a complete record.
    2. Estoppel — Judicial Admission Conclusive on Second Trial.
    Where defendant, in a suit for specific performance, claimed that no valid contract existed between it and plaintiff, and said suit was discontinued, it was estopped from, claiming later, in an action in assumpsit against it to recover the money paid under said alleged contract, that it was valid and enforceable, its admission in the former suit being a judicial one and conclusive upon it in the second trial.
    3. Assumpsit — Pleading—Special Count Not Relied on Not Bar to Recovery on Common Counts.
    Plaintiff was not precluded from recovering on the common counts because of a special count set out in his declaration, upon which he did not ask to recover.
    Error to Wayne; Goff (John H.), J.
    Submitted January 14, 1921.
    (Docket No. 55.)
    Decided March 30, 1921.
    Rehearing denied July 19, 1921.
    Assumpsit by Ernest Hassberger against the General Builders’ Supply Company for money had and received. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Daniel P. Cassidy and John G. Cross, for appellant.

      Munro & Powell (Leo F. Covey, of counsel), for appellee.
    On December 18, 1916, defendant gave one Donlin a 15-day option on certain real estate situated in Detroit. This option was transferred to plaintiff; how formally it was assigned does not appear. Shortly after its expiration plaintiff and defendant entered into an agreement with reference to taking sand from the premises. Plaintiff expected to be away during 'the winter and left the matter with his son who from time to time advanced money to defendant upon the option. Three thousand seven hundred fifty dollars all told was paid defendant. In the spring of 1917 tender was made of the balance of the down payment and upon defendant’s refusal to execute the proper papers a bill for specific performance was filed. Defendant appeared in said suit, and, by answer and motion to dismiss in the nature of demurrer, insisted for many reasons that it was not bound by the option; that it was unenforceable and void. Plaintiff’s counsel, after considering the matter, conceded that defendant’s position was well taken and dismissed the bill and brought this action to recover the money paid. In this action defendant attempted to change its front and insisted that the option was enforceable, that it was bound by its terms, and that it was ready and willing to carry out the contract. The trial judge declined to permit this defense to be made, and, in his charge directing a verdict for plaintiff, said:
    “There has been introduced here in this trial undisputed and undisputable evidence, that at a time prior to the bringing of this suit by plaintiff another suit was instituted before this .court in chancery by the plaintiff in which he sought to obtain a decree for specific performance of an alleged contract in pursuance of which said plaintiff had paid over to this defendant the sums of money which are sought to be recovered here, and it has further been shown here that the defendant in said prior suit also alleged in his answer filed in said suit that there had never been nor was there then any contract between these parties for the sale and purchase of the premises in question, that the writing here introduced as Exhibit ‘A’ in that suit and as Exhibit ‘1’ in this trial was a mere option subsisting by its own terms- for fifteen (15) - days only, and that it had never been accepted by the plaintiff. And on this stand taken by the defendant in that case the plaintiff thereupon discontinued that suit.
    “I understand it to be an approved doctrine of the law governing this court that, ‘where a party gives a reason for his conduct and decision-touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law/ This defendant cannot, therefore, after having expressly and unequivocally denied the existence of a valid and enforceable contract between these parties with reference to this property and after the plaintiff, on the strength of such denial, has dismissed his said suit and sought the remedy consistent with the state of facts set up by the defendant, now come before this court and say that there was and is a valid contract subsisting between these parties and rest his defense on the legal effect of such contract now alleged but heretofore denied.”
   Fellows, J.

(after stating the facts). Defendant here urges that the trial court was in error in not permitting' it to make the defense attempted In this case; that it is not estopped from making it, and it is particularly stressed that the former case did not proceed to final decree, which it is insisted is essential to make available the doctrine of estoppel. Authority will be found tending to sustain defendant’s contention. See Shepard v. Pratt, 32 Iowa, 296; Lindsay v. Dutton, 227 Pa. 208 (75 Atl. 1096); Beeson v. Shively, 28 Kan. 574; Thompson v. Currier, 70 N. H. 259 (47 Atl. 76). But it must be borne in mind that res adjudicata, estoppel by judgment, is not here relied upon by plaintiff. Manifestly if res adjudicata, estoppel by record, is invoked there must be an adjudication, a judgment or decree, a complete record.. What plaintiff insisted upon and what the court held was that defendant was estopped by his conduct, not by a former adjudication, by insisting in the former case that the contract was void to the disadvantage and expense to plaintiff, not by a final decree in that case. We think the distinction is clear. One may be estopped by his conduct, by his acts; and we are not persuaded that he is immune from the application of the doctrine of estoppel because such conduct or acts on his part occurred in judicial proceedings where the other elements of estoppel are present. Illustrative of this is the recent ease of Millitello v. B. F. Roden Grocery Co., 190 Ala. 675 (67 South. 420). The grocery company had commenced suit naming Jim Millitello as defendant. The process was served upon V. Millitello, who appeared, but on his counsel being assured that the ease was not one against Ms client made no defense. After judgment it was sought to collect by levy on the property of V. Millitello and it was insisted that he was the same person as Jim Millitello. The court held that the doctrine of estoppel was applicable. Our own recent case of Weiss v. Stein, 209 Mich. 482, will be discussed presently.

Mr. Justice Somerville, speaking for the court in Caldwell v. Smith, 77 Ala. 157, said:

“It was anciently said, that estoppels .were odious, because they stopped or closed one’s mouth from alleging the truth. Co. Litt. 352a. But, in modern times, the doctrine has certainly lost its odium, and may now be regarded as one of the ‘most important, useful, and just agencies of the law.’ Bigelow on Estop. 44. It has its origin in moral duty and public policy; and its chief purpose is the promotion of common honesty, and the prevention of fraud. Where a fact has been asserted, or an admission made, through which an advantage has been derived from another, or upon the faith of which another has been induced to act to his prejudice, so that a denial of such assertion or admission would be a breach of good faith, the law precludes the party from repudiating such representation, or afterwards denying the truth of such admission. 1 Greenl. Ev. (14th Ed.) §§ 27, 207. So a party who either obtains or defeats a judgment, by pleading or representing anything in one respect, is generally held to be estopped from giving the same thing another aspect, in a suit founded upon the same subject-matter.”

And the same court in Jones v. MePhillips, 82 Ala. 102 (2 South. 468), said:

“The conduct of causes in court, and the results thereby attained, have sometimes been held as working an estoppel in pais, precluding the party, who thereby obtained a decision in his favor, from after-wards disputing or controverting the truth of the ground on which he had achieved his former success. Such cases combine all the elements of estoppel set forth above. To allow a party who succeeds in defeating one action on a seeming state of facts, though false, to shift his ground and defeat a second action by disproving the truth of his first defense would be to sanction the grossest abuse and fraud.”

The court of appeals of Virginia in Norfolk, etc., R. Co. v. Turnpike Co., 111 Va. 131 (68 S. E. 346, Ann. Cas. 1912A, 239), said:

“We think that the appellant is estopped from relying upon any of the grounds named for a reversal of the order complained of. It not only claims under the proceedings in which the receivers who instituted this proceeding v/ere authorized to institute it, but after its purchase in that case, in order to prevent the appellees from subjecting the deed of trust property in the State court, as they clearly had the right to- do, but for the condemnation proceedings, it relied upon those proceedings and by means thereof procured the said injunction from the Federal court. To permit the appellant afterwards, when the appellees were asserting their rights in the condemnation case, to deny that the receivers who brought that proceeding had authority to institute it, or that their petition instituting it was sufficient, would be in violation of the well-settled rule of law, , that a litigant will not be allowed in a subsequent judicial proceeding to take a position in conflict with a position taken by him in a former judicial proceeding, which latter position is to the prejudice of the adverse party, where the parties are the same and the same questions are involved.”

In Harnish v. Barzen, 103 Kan. 61 (173 Pac. 4), the supreme court of that State had under consideration a somewhat similar question and it was said:

“The grounds of the motion to strike from the files were that the plaintiff was not a party to the suit, and that because he was not a party his rights were not affected, and was in no manner barred, denied, or estopped from pursuing any legal right or remedy he might claim in an independent suit against the defendant concerning the property. This motion was allowed, and the plaintiff’s motion was stricken from the files. It seems the defendant regarded it as important to keep the plaintiff out of the Federal court case, and, having prevented the plaintiff from obtaining an adjudication of his motion on the very ground that the decree did not adjudicate anything against the plaintiff, the defendant cannot now be heard to say otherwise.”

This court in the early case of McQueen v. Gamble, 33 Mich. 344, said:

“The defendant was not at liberty to claim the benefit of a contract he refused to regard and expressly repudiated, in order to turn the plaintiff out of court.”

In the instant case plaintiff was put to extra expense in starting the present litigation. In the case of Meister v. Birney, 24 Mich. 435, it was said:

“Expenditures in litigation may as reasonably constitute the basis of an estoppel as any other expenditures; and in this case it is just and equitable that they be held to do so.”

The case of Weiss v. Stein, supra, is upon principle controlling of the instant case. There one Goldsmith had brought attachment proceedings against one Pierce, and the sheriff, defendant Stein, had levied upon two car loads of potatoes; plaintiff Weiss claiming to own the potatoes brought replevin. Goldsmith took upon himself the. defense of the sheriff and claimed upon the trial that the potatoes belonged to him. This court held that he could not thus change his front, that his action in causing a levy to.be made on the potatoes as the property of Pierce precluded him from making such defense, and that the court should have directed a verdict. We there quoted with approval from Ruling Case Law. It may be appropriate to again quote the rule from that authority:'

“The rule that a party will not be allowed to maintain inconsistent positions in judicial proceedings is not strictly one of estoppel, partaking rather of positive rules of procedure based on manifest justice and, to a greater or less degree, on considerations of the orderliness, regularity, and expedition of litigation.” 10 R. C. L. p. 698.

“It may be laid down as a general rule that a party will not be allowed in a subsequent judicial proceeding to take a position in conflict with a position taken by him in a former judicial proceeding, where the later position is to the prejudice of the adverse party, and the parties and the question involved are the same.” 10 R. C. L. p. 702.

The following authorities will be found to sustain plaintiff’s contention: Robb v. Shephard, 50 Mich. 189; Ripley v. Priest, 169 Mich. 383; Great Western, etc., Refining Co. v. Evening News Ass’n, 139 Mich. 55; Grand Trunk, etc., R. Co. v. Fuller, 205 Mich. 486; Patek v. Ryskewiecz, 189 Mich. 344; Railway Co. v. McCarthy, 96 U. S. 258; Penn. R. R. Co. v. The John Anda Co., 131 Ill. App. 426; Suddeth v. Collins, 144 Ga. 496 (87 S. E. 656); Hutchings v. Railway Co., 98 Kan. 225 (158 Pac. 62); Scott v. Scott, 162 Iowa, 261 (143 N. W. 1103); Hutchins v. Hutchins, 42 N. Y. Supp. 601; Great Falls Nat. Bank v. McClure, 99 C. C. A. 562, 176 Fed. 208; Norfolk Southern R. Co. v. Chatman, 244 U. S. 276 (37 Sup. Ct. 499, L. R. A. 1917F, 1128); Milliken & Farwell v. Roger, 138 La. 823 (70 South. 848); 3 Eng. Ruling Cases, p. 327, note.

In Connor v. Railway Co., 168 Mich. 29, this court held that where an admission was made by counsel upon the first trial it was a judicial admission, concluding the party on a second trial, and that he was estopped on the second trial from taking any position inconsistent with his first position. This was followed in Johnston v. Cornelius, 200 Mich. 209 (L. R. A. 1918D, 880); Harrington v. Accident Ass’n, 210 Mich. 327.

In the instant case defendant succeeded in defeating an action for specific performance on the ground that no valid contract existed between it and the plaintiff. If this was true, it held some $3,750 of plaintiff’s money to which it had no right. For the purpose of defeating an action now brought to recover this money it changes front, and seeks to insist that there is a valid contract subsisting between it and plaintiff. It is fortunate for the due administration of justice that the rules of law will not permit this to be done.

What we have said disposes of the case and it becomes unnecessary to consider the, other question raised except that it should be'stated that plaintiff was not - precluded from recovering upon the common counts because of the special count set out in his declaration and upon which he did not ask to recover.

The judgment will be affirmed.

Steere, C. J., and Moore, Stone, Bird, and Sharpe, JJ., concurred. CLARK, J., did not sit.

The late Justice Brooke took no part in this decision.