author: Steere, J.

text:
    ANDERSON FORGE & MACHINE CO. v. STERLING MOTOR CO.
    1. Justices of the Peace — Pleading—Failure to Plead— Waiver.
    Defendant’s failure to plead in justice’s court did not waive defects in plaintiff’s declaration or the right to be heard by objection and motion against the entry of a judgment not warranted by the declaration and plaintiff’s proofs.
    2. Pleading — Bill of Particulars.
    A bill of particulars is not a pleading, and while it may restrict, it cannot enlarge, the scope of recovery authorized under the declaration.
    3. Same — Breach of Contract — Common Counts — Special Pleading.
    Where plaintiff seeks to recover damages for breach of a particular contract, not recoverable under the common counts, he must allege what was agreed to be done, what was done or omitted in violation of the contract, and the damages resulting from such breach.
    4. Same.
    In a suit for breach of contract in refusing to accept crank shafts ordered, where the accepted order provided there should be no die charge, there could be no recovery for “unabsorbed die charge” where the declaration was upon the common counts, setting up the accepted order, but containing no special count or essential averment of facts showing a breach of the contract, although a bill of particulars for the die charge was filed.
    Error to Wayne; North, J., presiding.
    Submitted January 15, 1918.
    (Docket No. 65.)
    Decided June 3, 1918.
    Assumpsit in justice’s court by the Anderson Forge & Machine Company against the Sterling Motor Company for breach of a contract to purchase certain crankshafts. There was judgment for plaintiff, and' defendant appealed to the circuit court. Judgment for-plaintiff. Defendant brings error.
    Reversed.

      Rowland M. Connor, for appellant.

      James O. Murfin (Frank C. Sibley, of counsel), for appellee.
   Steere, J.

This case was commenced in justice’s court in the city of Detroit, where plaintiff had judgment from which defendant took an appeal to the circuit court of Wayne county.. The return of the justice before whom the cause was tried is, except the formal beginning and ending, as follows:

. “The parties prosecuted and defended in their individual character. The cause was commenced by summons issued on the 20th day of November, 1916, returnable at my office in the city of Detroit, in said county, on the 1st day of December, 1916, aforesaid, at 9 o’clock in the forenoon.
“The plaintiff declares in an action of assumpsit on all the common counts, especially for breach of contract, claims damages $500 or under. The defendant did not appear. The said cause was tried by court.
•_ “That on the 1st day of December, 1916, I rendered judgment in favor of plaintiff and against defendant for two hundred ninety-seven and 30/100 dollars damages and one and 75/100 dollars costs.”

A bill of particulars entitled in the cause, and justice’s court, without date or file marking but signed by the attorney for plaintiff and presumably returned by the justice is as follows:

To the Defendant:
Take notice that the following shall constitute the bill of particulars of plaintiff at the trial of the above entitled cause.
Damages upon express contract as set forth in correspondence represented by the unabsorbed die charge .................................. $279.15
Interest at 6% from March 15, 1915, to April 15th, 1915, to April 15th, 1916............... 18.15
Total ....................................... $297.30

The case came on for trial in the circuit court before the judge without a jury. Counsel appeared for both parties. No attempt was made to amend or perfect the pleadings, or file new pleadings in the cause as the statute provides the court may allow, and the return of the justice as to plaintiff’s declaration in that court is the only information furnished by the record as to pleadings. While the justice returns that “the parties prosecuted and defended in their individual character” no reference is made to any pleadings or other participation by defendant, and he also returns, as his last utterance, that “the defendant- did not appear.” If defendant ever pleaded in this case the fact has been carefully concealed from the court. No objection on that ground, however, was suggested against the participation of defendant’s counsel in the trial, nor any reference made to the subject.

No witnesses were sworn upon the trial. When it was called plaintiff’s counsel proceeded without any preliminaries to state the case at length to the court, during which, and timely after the nature of plaintiff’s claim was made known, defendant’s counsel interposed and preserved by objection and motion the contention that plaintiff’s declaration on the common counts, without any special count or essential averment of facts showing a breach of contract, was not sufficient to support a judgment or admit proof of the breach of contract outlined by plaintiff’s counsel and sought to be proven.

The contract' for breach of which recovery was sought consisted of two accepted orders for 5,000 crank shafts, one of which (Ex. D) is as follows:

“Original purchase order.
“Sterling Motor Co.,
“Detroit, Mich.
“Req. No. S-7381 6-8-14.
“Order No. 7381.
“Anderson Forge & Machine Co.,
“City.
“Ship to — : Us at 1145 West Grand Blvd.
“2,500 (No. 449) Crank shafts.
“To be made from 35-45 carbon steel — All forgings to be heat-treated, straightened and delivered at our plant.
“Price $1.50 ea. No die chge,
“Delivery to be made as quickly as possible.
“Robt. D.,
“Purchasing Agent.”

On the same day another order (Ex. E) numbered S-7382 was given and accepted for 2,500 more crank shafts on the same terms, signed by the same purchasing agent and in the same form, except the last line which provided: “Delivery specifications later.”

Plaintiff’s evidence consisted of the above exhibits, over 20 letters between the parties relative to this contract which towards the last became quite inhar- ■ monious, and certain facts stated by plaintiff’s counsel and conceded, as is. claimed, by defendant’s counsel, subject to his objection, although the' record is not clear as to some of them which are denied in defendant’s brief.

The cost of making the die. in question was $360 which plaintiff claimed should be apportioned over the 5,000 crank shafts contracted for, only 1,007 having been made and delivered, owing, as plaintiff claimed, to defendant’s refusal to order delivery as agreed. All crank shafts manufactured were delivered and paid for. Defendant’s counsel admitted that plaintiff could produce witnesses who would testify “the %>ro rata, price of these dies was 7c. apiece,” and the amount claimed by plaintiff on that basis would be $279.15. No evidence was offered by defendant.

When parties rested defendant’s counsel renewed his. former objections and fnotion for judgment in ■favor of defendant on the grounds previously stated, amongst which it was urged before the conclusion of the case that against the provision in the accepted orders “No die chge,” there could be no recovery for “unabsorbed die charge,” as damages for the alleged breach of contract.

Findings of fact were made by the trial court with conclusion of law thereon and a judgment was rendered for the amount claimed. The court found in part:

“That the subsequent cancellation of said contract by the plaintiff was after repeated and persistent refusal on the part of the defendant to carry out its part of the contract, and that such breach of the contract by the defendant justified the cancellation by the plaintiff. * * * That the procuring of the die for which plaintiff seeks to recover a portion of the purchase price as a measure of damages in this case, was necessarily purchased by the plaintiff incident to its performance of the contract with defendant,”—

and was therefore entitled to recover the unabsorbed portion of its cost. The court held as a conclusion of law that the declaration is sufficient in form and substance to sustain a judgment in favor of plaintiff in view of the testimony taken in the case.

While the somewhat confusing condition of the record leaves to conjecture certain matters of which there is usually no uncertainty, it is fairly shown in the case that no default had been taken against defendant for failure to plead and when it came on for trial defendant’s counsel appeared and participated without objection. He offered no testimony. Defendant’s failure to plead did not in any event waive defects in plaintiff’s declaration or the right to be heard by objection and motion against the entry of a judgment not warranted by the declaration and plaintiff’s proofs.

The die in question belonged to plaintiff. While perhaps true that it was “necessarily purchased by the plaintiff incident to its performance of the contract,” as the court found, and was valuable as a die only for that purpose, as plaintiff claims, aside from the assertions of its counsel and self-serving statements in its letters, we find no proofs of those facts in the record. Upon the proposition that it was an element of damage, counsel for plaintiff said, to the court that they had witnesses by whom it could be shown it was the custom in the forging business when “no die charge” is provided in the contract to include the cost of the die, “upon which you understand there is no profit,” in the cost of the contract, and stated “I have testimony to show that, unless you either admit it or exclude it.” In reply to which counsel for defendant objected to “the introduction of any such testimony on the ground that you cannot' change a written contract with any alleged costs — ” when he was interrupted by plaintiff’s counsel and the question was argued. Later in the discussion, defendant’s counsel said he would not dispute that in figuring the price something was charged for dies and very likely 7 cents, and later stated he would admit “that plaintiff can produce witnesses who will swear that the pro rata price of those dies were 7 cents apiece,” but no legal evidence of custom or that the die which belonged to plaintiff had no value except for this contract was introduced.

Upon the sufficiency of plaintiff’s declaration to sustain a judgment for damages arising out of a breach of contract, we find from the justice’s return that it was upon the common counts with “especially for breach of contract” added. There is no special count on a designated contract, nor suggestion as to the nature of the contract or claimed breach.

In the early case of Hosmer v. Wilson, 7 Mich. 294, where the order for an article to be manufactured was countermanded, it was held that a manufacturer could not recover on the common counts for the value of labor and material which had been devoted to filling the contract, but should declare specially on the contract and claim his damages for its breach, or the wrongful prevention of its performance.

Against this long settled rule it is the contention of plaintiff, as we understand it, that the bare allegation of “especially for breach of contract,” supplemented by the bill of particulars, is equivalent to a special count under the liberal rule which obtains as to oral pleadings in justice’s court; in support of which the case of Applebaum v. Goodman, 155 Mich. 373, is cited. While in the statement of that case mention is made of the fact counsel had stipulated that upon the file cover used by the justice was indorsed “plaintiffs declare in an action in assumpsit on all the common counts especially for breach of contract,” it is nowhere said that if recognized as part of the réturn this would be equivalent to a special count in an action to recover for breach of contract damages not recoverable under the common counts. Recognizing that the rule is liberal as to form and technicality of pleading in justice’s court, and a declaration good in justice’s court is generally good on appeal, the court further points out by cited authority that a bill of particulars, which is not a pleading, may restrict but cannot enlarge the scope of recovery authorized under the declaration, and it was held in conclusion that application of the settled rules of pleading demanded reversal.

Where, under the settled rules of pleading, plaintiff seeks to recover damages for breach of a particular contract, not recoverable under the common counts, such bare reference to some contract without throwing any light upon it or the nature of the breach claimed is not good as a special count. Although in justice’s court technicalities are not required nor amplification of the essential facts relied upon, this court has never departed from the elementary rule that in an action for damages based on a breach of contract, not recoverable under the common counts, at least briefly as essentials of a special count, plaintiff must allege what was agreed to be done, what was done or omitted in violation of the agreement and the damages resulting from such breach. This subject is sufficiently discussed in Applebaum v. Goldman, supra; Prest-o-lite Company v. Widrig, 179 Mich. 230, and the cases cited by them which we conclude are controlling here.

For the reasons above stated the judgment is reversed, with costs, and a new trial granted.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    BOYD v. KING.
    1. Carriers — Railroads—Livestock—Delay—Claim;—Limitation by Contract — Waiver.
    Plaintiff’s failure to present a claim within five days for shrinkage in value of live stock shipped over defendants’ railroad, as required hy the contract of carriage, was a defense that the carrier should have pleaded, in a suit to recover said loss, and omission to do so amounted to a waiver of that defense.

    2. Same.
    Where plaintiff notified defendants twice hy telegram, after being notified that the stock was being detained, that he should hold them responsible for any loss occurring by reason of their neglect to forward said stock according to shipping contract, defendants’ contention that they were not notified of the claim for loss cannot be sustained.
    3. Same — Delay—Quarantine—Embargoes—Defenses.
    Where the plaintiff shipped a car load of hogs and sheep over defendants’ railroad, to be transported from Fremont, Newaygo county, Mich., to Buffalo, N. Y., and there was an embargo in the State of New York against importing cattle into that State from the county of Wayne, Michigan, and certain other counties, but not including the county of Newaygo, defendants’ action in unloading the stock at Plymouth in Wayne county, thus bringing them within the embargo and preventing their shipment to Buffalo, rendered them liable for the resulting loss.
    4. Same — Notice—Embargoes—Defenses.
    In said action, where the defendants accepted the shipment of stock to New York State without informing plaintiff of the embargo existing in that State, or of the refusal of a connecting railroad company to receive shipments after a certain date because of said embargo, of which they had notice, the fact of the embargoes would not constitute a defense for their failure to fulfil their contract of carriage.
    5. Same ■ — • Interstate Commerce — Live . Stock — Quarantine — Federal Statutes.
    The Federal statute (section 8701 et seq., U. S. Comp. Stat. 1916), authorizing the United States secretary of agriculture to promulgate orders of quarantine as to interstate shipments of live stock to prevent spreading of hoof and mouth disease, is paramount and controlling, where in conflict with the State law.
    6. Same — Defenses—Delay.
    Action by the secretary of agriculture under the Federal statute would not constitute a defense, where the quarantine orders issued by him did not apply to cars in transit, and but for defendants’ delay plaintiff’s shipment could have been forwarded to destination.
    Error to Newaygo; Barton, J.
    Submitted January 15, 1918.
    (Docket No. 86.)
    Decided June 3, 1918.
    Assumpsit by Edwin L. Boyd against Paul H. King and another, receivers of the Pere Marquette Railroad Company, for breach of a contract to transport certain stock. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Parker, Shields & Brown {John, C. Bills and Seward L. Merriam, of counsel), for appellants.

      Hall, Gillard & Temple, for appellee.

       See note in 17 L. R. A. (N. S.) 628.

   Steere, J.

Plaintiff recovered in the circuit court of Newaygo county a verdict and judgment for $287.56 against the receivers of the Pere Marquette Railroad Company for a loss resulting from an alleged breach of contract sustained by him on a shipment of a carload of live'stock delivered to defendants for shipment over their line from Fremont, Michigan, consigned to Buffalo, New York.

The declaration is upon the common counts in assumpsit and it is claimed that the contract was breached as follows:

“That the defendants did not carry said goods safely and within a reasonable time, but caused or permitted them to be damaged in the following respects: It delayed the carriage of said car. It also unloaded the .sheep and hogs at Plymouth, Michigan. This was what was known at that time as an infected district. The public authorities at Buffalo had placed an embargo upon any sheep or hogs which had been unloaded in an infected district. Therefore, the carrier by unloading the sheep and hogs at Plymouth made it impossible for them to complete their contract of carriage to Buffalo, and it became and was necessary to allow said car to be carried to Detroit and the contents to be disposed of there.”

Plaintiff resided at Fremont, engaged for many years dealing in farm products and buying and selling live stock, making shipments to Chicago, Buffalo, and Detroit markets. In the latter part of October, 1914, he purchased for shipment to market sufficient hogs and sheep for a carload and applied to defendants’ agent, Mr. Frisby at Fremont, for a double-decked car in which to transport this carload of hogs and sheep to the Chicago market. Frisby then told him there was some uncertainty about getting the car to Chicago on account of a quarantine in that locality, but the day before the car was to be loaded told him he had found out it would run through to Chicago. Plaintiff, however, decided to send the shipment to the Buffalo market and loaded the car with 89 hogs and 123 sheep, intending to send it by the usual routing through Canada. Frisby thereupon told him that owing to a quarantine in Canada this could not be done, but,,the car could be routed by Plymouth and Toledo over the Lake Shore, showing him the route on a map which he produced, and that there would be not very much difference in time of transit between the two routes and plaintiff said “all right.” He testified that he had previously accompanied cars of live stock from Fremont to Buffalo and also sent cars through without any one in charge with a time limit extended to 36 hours, as in this case, and the stock was never unloaded en route nor had he ever been called upon to pay a bill for unloading, feeding, watering and reloading when the cars were unaccompanied.

This car was started on Saturday, October 31, 1914, at about 11 o’clock, the stock having been previously fed and watered that morning, in anticipation of its arriving at Buffalo before daylight Monday morning, when the stock could be put on the market that day, which plaintiff testified had been his previous experience as to time of transit in making such shipments from Fremont to Buffalo, a distance of 380 miles by the Toledo and Lake Shore route.

The next he heard from the car was the following Monday forenoon, November 2, when he was advised by Frisby, the agent at Fremont, that the stock had been unloaded at Plymouth and could not be reloaded for its destination, and they wanted instructions from him as to what disposition be made of it. He first handed Frisby a telegram to forward, addressed to him as agent of defendants, as follows:

“11-2-14
“Forward P. M. 2256 to Buffalo at once without any further delay or the contents of the said car belongs to the P. M. R. R. Co.”

Being informed by Frisby later in the day that owing to a quarantine in Wayne county the car could not be reloaded and taken out of the county he served upon him the following to forward:

“11-2-14
“We note New York embargo. Sell stock now at Plymouth at Detroit to best advantage and we will hold P. M. R. R. Co. for all damages.”

And being later advised that they refused to act upon such notice he served another, on November Sd, as follows:

“11-8-14
“Divert P. M. 2256 now at Plymouth, Mich., to Bishop, Bullen & Holmes to Detroit and we shall hold said P. M. R. R. Co. for all damages.”

The load of stock was then taken to Detroit by defendants and there disposed of for plaintiff by the agents to whom he had diverted it, the diversion causing a loss of $454.40, for recovery of which this action is brought. The damages which he introduced evidence to prove and sought to recover for consisted of shrinkage in weight, a shortage of ten sheep in the number he had shipped, and the difference between the Buffalo and Detroit markets at the time the stock should have been delivered in Buffalo if carried through with reasonable despatch according to the ordinary time required for shipment of stock between Fremont.and Buffalo.

Defendants pleaded the general issue with notice that the shipment referred to was “moved under and subject to provisions of the published tariffs of said defendants filed with the interstate commerce commission and the Michigan railroad commission” by the terms of which the parties to this action are bound.

Upon the trial defendants’ chief contention was that they were prevented from fulfilling their contract of carriage by a notice received from the Lake Shore railroad company of an embargo by it, refusing to receive cars of live stock at Toledo-for eastern points unless they had 15 hours remaining out of the 36, in which stock must be fed, etc., on delivery to it at Toledo, based on a foot and mouth disease quarantine against imports of live stock which had been put into effect in the State of New York.

Defendants’ counsel say in their brief that the legal points raised upon the record are as follows:

“1. Whether the Lake Shore and New York State embargoes constitute a defense for defendants’ failure to move the stock to Buffalo.
“2. Failure of plaintiff to comply with the provisions of the contract requiring claim to be filed within five days.
“3. The verdict of the jury was contrary to law and against the just rights of defendants.”

The point that plaintiff was precluded from his action by failure to comply with a provision in his shipping contract requiring a claim for damages to be made in prescribed form and manner within five days was not pleaded by defendants, which was a waiver of that defense under Tobin v. Railway Co., 192 Mich. 549; and it is also shown that when first informed his stock had been unloaded at Plymouth, in a quarantined county, at a time he claimed they should have reached Buffalo' and supposed they had, plaintiff notified defendants twice, by telegram, of his claim for resulting damages. Defendants were certainly advised promptly that a claim was made, so that a timely investigation of the facts could be had if desired, which is said to be the “obvious purpose of the notice”; Slider v. Railroad Co., 194 Mich. 581; vide, also, Sny der v. King, 199 Mich. 345. Under the foregoing decisions and authorities they cite, defendants’ contention as to notice cannot be sustained.

The question most strenuously litigated in the trial court and argued in the briefs of counsel here is whether the Lake Shore embargo and New York quarantine constitute a good defense for defendants’ failure to move the stock to Buffalo according to its contract of carriage. It was the opinion of the trial court that they did not.

The stock was shipped under a regular “uniform live stock contract” of the kind discussed in Snyder v. King, supra, dated October 31, 1914. The way-bill issued at Fremont showed the car of stock, P. M. 2256, consigned to Dunning & Stevens, East Buffalo, N. Y., “loaded, fed and watered 11 a. m. October 31, 1914,” and it is stated in defendant’s brief that it “went forward promptly from Fremont.” When it arrived at Plymouth does not appear.

The New York quarantine order offered and relied on by defendants is dated Albany, N. Y., October 31, 1914, entitled “Notice and order to prevent the bringing of foot and mouth disease into the State of New York,” and signed by “Calvin J. Huson, commissioner of agriculture.” It prohibits bringing into the State of New York designated kinds of live stock, including sheep and swine, “from any one of the counties of Lenawee and Monroe, State of Michigan, and from any one of the adjacent counties of Wayne, Washtenaw and Hillsdale, State of Michigan,” and various named counties in other States. Newaygo county, Michigan, in which Fremont is located, and from which this stock was shipped, is not included in the quarantine.

Defendants’ embargo notice from the Lake Shore & M. S. R. Co., addressed to “agents and connections,” directs that “all cars en route prior to placing will be accepted unless otherwise stated below.” It is headed “extension,” gives dates as “placed” October 30 and extended October 31, 1914, and states that “on account New York State authorities placing embargo on shipments of live stock coming from Wayne, Washtenaw and Hillsdale counties, Michigan, and Williams, Fulton and Lucas counties, Ohio,” it would not accept shipments of stock originating in these counties, nor shipments of stock fed at the Toledo stockyards for shipment over its line to points in New York State. Newaygo county, Michigan, where this shipment originated, is not mentioned.

This was an interstate shipment, governed by the Federal laws. Under act of March '3, 1905 (section 8701 ei seq., U. S. Comp. Stat. 1916), congress took possession of the field and assumed control of such shipments, authorizing and directing the United States secretary of agriculture to determine the emergency and, where required, promulgate orders of quarantine as to interstate shipments of live stock. There can be no doubt this law is paramount and where the State law conflicts with it the latter must yield. It is stated in the reasons of the trial court for denying defendants’ motion for a new trial, and not denied, that “The secretary of agriculture had issued quarantine orders covering Michigan and Ohio, becoming effective November 2,1914, but which did not apply to cars in transit at that time.”

The quarantine order issued by the commissioner of agriculture of New York was an absolute prohibition of interstate shipments into that State of any stock of the species named from the designated counties, whether healthy or diseased and infected. It goes further than to merely stop for inspection with a view to excluding diseased stock, as in Asbell v. Kansas, 209 U. S. 251, where this somewhat complicated question's reviewed and the distinction pointed out.

But aside from the foregoing, and assuming that the embargo by the Lake Shore railroad had the validity defendants, claim, they are not in a position to invoke it under the facts in this case. At the time they accepted this- carload of stock for transportation, they knew of facts by reason of which it was or might become impossible to fulfill their contract of carriage, which the shipper did not know and of which they did not give him notice.

Without informing plaintiff of the Lake Shore embargo or the New York quarantine order, defendants’ line accepted this carload of stock in a county against which there was. no quarantine, loaded and billed for interstate transportation to Buffalo, New York, over the route their agent advised, ran it into a county in Michigan against which there was. a quarantine and out of which the stock could not be removed after unloading, there unloaded it, and nearly two days after it left Fremont notified him of the fact, when he supposed it had reached its destination according to the usual running time for such shipments.

On defendants’ refusal to forward the car of stock to its destination or to Detroit in Wayne county without definite directions from him, plaintiff minimized his damages so far as possible by having the shipment taken to Detroit and there sold. The acceptance of the car load of stock and starting it on its way without notice to the shipper of the embargo claimed to have been placed upon their line was tantamount to the assurance that it would be delivered at its destination within a reasonable time and estops defendants from now claiming its operation as a defense for failure to fulfill their contract of carriage. If plaintiff had been informed at that time a different question would arise. Eastern R. Co. v. Littlefield, 237 U. S. 140.

An examination of defendants’ remaining assignments of error does not result in the conclusion that the verdict of the jury was contrary to law or against the just rights of defendants.

The judgment is affirmed.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    FINNEGAN v. WORDEN-ALLEN CO.
    1. Contracts — Severable Contracts — Construction.
    Where plaintiff’s subcontract was for construction of the abutments of twelve bridges at a stated price per yard, and a lump sum for the concrete floors, it cannot be contended that the contract was severable as to the. abutments of each bridge, because the county engineer measured and reported the concrete work in the abutments of each bridge as it was completed, and payments on such statements were made from time to time to defendant, the general contractor.
    2. Same — Default—Breach of Contract.
    Continued and repeated defaults in payment according to the provisions of a contract justify a contractor in abandoning the work before completion if the breach exists at the. time of abandonment, particularly when necessitated by lack of funds to continue owing to such default in payment.

    3. Same — Default—Waiver.
    Where default in payment was never rectified by defendant or condoned by plaintiff, the latter did not waive his right to abandon the contract by proceeding with its performance until compelled to quit for lack of funds.
    4. Same — Payment in Material — Compliance with Contract.
    Where defendant caused gravel to be delivered at bridges not started by plaintiff, wbicb be did not see, accept, or use, it cannot be urged as a compliance with tbe terms of tbe contract to pay 75 per cent, in casb on completion of tbe work, since plaintiff was entitled to be paid in money and not gravel.
    5. Same — Damages—Conditional Judgment.
    Where tbe verdict for plaintiff failed to deduct a certain sum for gravel paid for by defendant and used by plaintiff, tbe judgment wiU be affirmed conditional upon plaintiff’s remitting sucb amount witb proportionate interest.
    Error to Gogebic; Cooper, J.
    Submitted January 11, 1918.
    (Docket No. 41.)
    Decided June 3, 1918.
    Assumpsit by John F. Finnegan against the WordenAlien Company for a balance due on a bridge contract. Judgment for plaintiff. Defendant brings error.
    Affirmed, conditionally.

      Charles M. Humphrey (Bottum, Bottum, Hudnall & Lecher, of counsel), for appellant.

      James A. O’Neill, for appellee.

       See note in 30 L. Ri A. 33.

   Steere, J.

Plaintiff recovered a verdict and judgment against defendant in the circuit court of Gogebic county in the sum of $1,702.28 for concrete work done by him under a subcontract in connection with the construction of certain steel and concrete highway bridges in said county for which defendant had secured a contract. Plaintiff declared upon the common counts in- assumpsit claiming damages not to exceed $3,000, furnishing and filing a bill of particulars on demand showing a balance due him from defendant on construction of abutments and floors of specified bridges amounting to $2,835.97. Defendant pleaded the general issue with a detailed notice of special defense that the work done and material furnished by plaintiff, if done and furnished as claimed, were pursuant to a special subcontract in writing between the parties for construction by plaintiff of the abutments and concrete work on floors of certain bridges provided for in defendant’s contract with Gogebic county, charging that plaintiff failed to fully perform said subcontract on his part and breached the same, by reason whereof defendant suffered damages to the sum of $3,000 which it would claim and prove at the trial by way of recoupment.

It was shown upon the trial that defendant, the Worden-Allen Company, of Milwaukee, Wisconsin, entered into a certain contract in writing with the county road commissioners of Gogebic county, on May 1,1912, whereby the former agreed to furnish the material and construct ready for travel 12 highway bridges across streams in said county according to furnished plans and specifications, at the stated price of “$10,840 for superstructures complete. $9.40 per yard for all concrete in abutments. (Estimated yardage 625 yards.) —$5,875.00,” payments to be made on the first of each month at 75% of total work then done, the balance “upon completion and acceptance of work.”

On the day this contract was secured by defendant plaintiff had a conversation with its representative relative to taking over the concrete work, resulting in his signing the following proposal which' defendant later accepted from Milwaukee by letter:

“Bessemer, Mich., May 1 1912.
“Worden-Allen Co.,
“Milw., Wis.
“Gents: We agree to do all abutment work for $9.40 per yard, and further to place all concrete on floors of the 12 bridges as specified (578' x 16') (you to place forms) for total sum of $1,300.00 doing work per specifications, requirements, etc., guaranteeing same, etc., as per your contract, payments, etc., same.
“If ‘Hy-rib’ is used additional to be paid us a/c plastering.
“J. F. Finnegan.
“P. O. Verona, Mich., Gogebic Co.
“No bond to.be required in view of consideration here allowed.”

There was some delay in accepting the proposal because of absence from Milwaukee of defendant’s authorized representative, and correspondence as to certain details, but on June 13, 1912, defendant wrote plaintiff indicating final acceptance and wishing him success with the work, saying in part: “In relation to the concrete floor work, we will expect you to do the floor work along with the abutment work, as per our proposition to you,” which apparently had reference to the provision on that , subject in plaintiff’s proposal of May 1st which was prepared by defendant’s agent when in Gogebic county, who left a copy with plaintiff and took the signed original with him to Milwaukee for consideration and acceptance by defendant, if found satisfactory.

Plaintiff worked upon' this contract during the season of 1912 and by September 7th had completed the concrete abutments of five bridges, when he notified defendant’s representative who was in charge, of the structural work that he was ready to do the concrete floor work on these bridges, but was informed it could not be done then because they did not have the hy-rib material on hand yet, and would not have it for a month or six • weeks. He was then directed to proceed with his equipment to the site of what was called the Camp Francis bridge and put‘in the abutments there, which was some distance away in another part of the county with no direct line of travel opened to it from where he was, necessitating a trip and transfer of his help and equipment by a circuitous route of near 100 miles, by rail and road. He thereupon moved with his outfit to that site, arriving on September 11th, and proceeded to construct the abutments for the Camp Francis bridge, finishing the same on November 1st. While engaged in this work he received, on October 7th, a letter from defendant dated at Milwaukee September 28th and addressed to Verona, Michigan, stating that the hy-rib material had reached Marenisco and it was expected defendant’s foreman would proceed to place it, urging plaintiff to return and do the concrete floor work of those bridges immediately, followed by other communications to the same effect, also stating that in case he did not attend to it at once defendant would be compelled to do the work and charge the extra cost to him, which would be expensive, “because of the demurrage that it will cost us elsewhere on account of delaying our work holding our men in Gogebic county.” Plaintiff was then busy trying to finish the abutments of the Camp Francis bridge before the weather became too cold for concrete and did not go. He testified that if he could get cars to move his equipment in a reasonable time it would have taken him six or eight days to get his outfit moved from where it was back to the bridges where defendant wanted the floors placed and by the time he had finished the camp Francis bridge the season was so far advanced and cold that with his experience of ten years at concrete work he considered it a certainty that this floor concrete work 'if done by him after he could get there would be destroyed by freezing.

For satisfactory reasons not material here, the time of completing defendant’s contract had been then extended through another season — and the next year extended again — by the county board of highway commissioners; but, at the request and on the insistence of the county engineer who claimed that the unfinished highway crossing over three óf those bridges could be used for a winter road, defendant laid the floors of three of the bridges that fall charging all expenses to plaintiff, which exceeded, his contract price for the same by $808.27.

Plaintiff was paid monthly as the work progressed 75% of the county engineer’s estimates of the work then done on his subcontract, according to the terms of payment provided in defendant’s contract with the county, and depended on this to pay for labor, material and other expenses in that connection. On November 4, 1912, and again on December 3d he wrote defendant urgently for money to pay his labor and bills. On December 3,1912, defendant sent him a payment of 75% on work done by him up to that time according to engineer’s estimates, less the $308.27 claimed as extra cost of the floor work in question.

Work upon plaintiff’s contract was necessarily suspended during the winter, but preparatory to its resumption and with an apparent understanding of all parties concerned some gravel was hauled by the county to three of the bridge sites, at the instance of the county engineer, who testified:

“I suggested to them that it would be a good plan to have the gravel hauled on the snow during the winter while the snow was on the ground. I saw Mr. Finnegan with reference to the matter of hauling the gravel, and if I remember rightly he said it was all right because we hauled the gravel, * * * the whole charge for hauling and placing the gravel was $420.01. * * * This gravel was charged on the books of the county road commission to Worden-Alien company along about March 20, 1913.”

Plaintiff resumed work upon his contract in the spring of 1913 and continued, as he claimed, until he could go no further for the lack of funds owing to defendant’s refusal to pay. what was due him. He built the abutments of two bridges, hauling the gravel himself for one of them and using the gravel he found at the other which, as he testified, the county engineer had told him he was going to put there and for which a bill of $151.14 was rendered to plaintiff by the county.

Although he continued work until some time in August, 1913, plaintiff insistently and repeatedly protested against the deduction of $308.27 from the 75% due him for work done, complained of the embarrass-ment resulting to him from failure to promptly pay him what was due each month before the 15th, at which time his men had to be paid, notified defendant of his pressing need for funds to carry on the work and stated that if they would pay him what was withheld or furnish necessary material of that value he could and would complete the contract, but otherwise would quit. On July 8th he wrote:

“Your check for $249.26 came to hand for floor on Camp Francis Bridge. You are shy on this check $26.00, also $308.27 from last year. There will be no more work done by me on the bridges until this money is paid.”

Plaintiff did not work on his contract after August 13th, of which he testified, in part:

“I discontinued the work in 1913 because I couldn’t go ahead. I didn’t have any money or any material. If I had received this $308.27 I would have been able to proceed and finish the work. I so notified the defendant. I notified them that I would be willing to accept $308 worth of cement from them. If I had received the cement I could have gone ahead and finished the work.”

Mr. Winkler, the county engineer, who testified that the work done by plaintiff was found satisfactory and acceptable, wrote defendant two letters in relation to this matter from the county’s standpoint, saying in one of them, amongst other things:

“It does seem like a good idea if there is a difference between you and Mr. Finnegan that same should be adjusted in such a way that this county will not be the loser thereby in valuable time. Furthermore it don’t seem to be such an insurmountable difficulty for you to furnish your subcontractor with funds to carry on his work, especially when the amount is due him.”

On the trial plaintiffs claim was for the reasonable value of work done and material furnished, less payments made, on the theory that defendant had first breached the contract and prevented performance on his part by wrongfully withholding payments due him with which if made he would have been able to perform.

During the progress of the trial defendant’s claim and position was that plaintiff first breached the contract in refusing to lay the bridge floors in the fall of 1912 as directed, which justified defendant in doing •that work and charging the cost to him, it not being guilty of any breach of contract on its part.

At close of the testimony defendant’s counsel moved the court to instruct the jury to render a verdict in plaintiff’s favor for the sum of $246.29 with interest, which was refused and the case submitted to the jury, with careful instructions, on the questions of whether plaintiff was justified in abandoning his work by reason of defendant’s breach of the contract, whether he waived such breach by continuing the work thereafter, the reasonable value of what he had done and furnished up to the time he quit, defendant’s claim of recoupment and the state of their accounts as the jury might find the facts to be, followed by a verdict for plaintiff as before stated.

Defendant thereafter moved for a new trial on various grounds amongst which are the following:

“Secondly. The court erred in refusing and overruling the motion of the defendant, upon receiving the verdict of the jury and before the entry of judgment, to enter judgment for the plaintiff for the sum of $246.29 with interest. * * *
“Ninthly. The court should have determined, as a matter of law, whether or not the defendant was justified in building three floors on the bridges in the fall of 1912 and to charge the cost thereof, amounting to $308.27, to the plaintiff, and if the court found that the defendant was not so justified, then it was the duty of the court to have entered judgment for the plaintiff for the sum of $554.56, with interest at the rate of 5% per annum from November 20, 1914.”

In overruling this motion the court said in part:

“It appears that a large part of the charge of the court was devoted to the submissions of questions that are not now to be considered, in view of what is admitted by the defendant. The remainder of the charge has been considered and appears to me to be proper.”

In this court it is contended there was no issue for submission to the jury because “all the evidence as to the terms of the contract and acts of the parties thereunder was undisputed,” only questions of law for the court being involved, and in that connection it is said in defendant’s brief:

“The only question is whether the defendant could legally require plaintiff to place those floors at that particular time under the contract. We concede that it could not under the terms of the contract. We further concede that the defendant improperly withheld $308.27 from the plaintiff on December 13, 1912, but such withholding was done under the mistaken idea that the contract required the plaintiff to build the floors in October, 1912. Notwithstanding these concessions, we contend that the judgment as entered was erroneous and should be reduced in amount for the reasons hereinafter stated.”

After a discussion of the questions of law raised as applied to the conceded and claimed undisputed facts, counsel further say:

“Consequently his abandonment of the contract in August, 1913, was unwarranted, and he should be held liable for all damages occasioned the defendant by such breach. According to the undisputed evidence, such damage amounted to the sum of $1,171.99 less the sum of $308.27 which we concede was improperly charged, making the damages $863.72. Deducting this sum from $1,418.28, the balance due Finnegan on the work he completed, leaves the actual balance now due $554.56. We concede that that is the proper judgment which should be entered and that the trial court was in error in entering judgment for a greater amount. * * * The judgment should be reversed and the case remanded with directions to enter judgment in favor of the plaintiff and against the defendant for the sum of $554.56, with interest thereon from November 20, 1914, at the rate of 5% per annum.”

The three reasons urged under the situation thus conceded and presented are:

“That the contract was severable as to the abutments for each bridge and the failure to pay any installment due under the contract would not authorize the abandonment of the contract in the absence of any evidence showing that the defendant, by reason of such failure to pay, intended to abandon the contract on its part.
“Assuming that such failure to pay was such a breach as would authorize the plaintiff to abandon the contract, the right to so abandon the contract was waived by the plaintiff subsequently proceeding under the contract and accepting payments thereunder.
“The right to abandon the contract must be determined as of the date when the same was abandoned, ■and at that time the uncontradicted evidence shows that the defendant had advanced to plaintiff materials of greater value than the amount of the payment withheld.”

The contention that the contract was severable as to the abutments of each bridge is based upon the claimed practical construction put upon it by the road commissioners, as evidenced by the testimony of the county engineer that he measured up the concrete work in the abutments of the bridge “as it was completed,” or “after the abutment work was completed,” figured up 75% of its. value at the contract price and made a report of it to the road commissioners, who on such statement made payments “from time to time” to defendant. We find nothing in this practice of the engineer in making and reporting his estimates to affect the rights of plaintiff or change the provisions of the written contracts involved. Plaintiff’s subcontract was for construction of the abutments at a price per yard, and $1,800 as a total sum for the concrete floors. Defendant’s contract provided a lump sum for superstructures of all the bridges, including the floors, and $9.40 for all concrete work in building abutments, “payments for both superstructures and substructures to be made on first of each month at 75% of the total work done, balance upon completion and acceptance of work.” In this there was no ambiguity. No question of construction is involved. The promise as to time and terms of payments had no more relation to separate bridges than it had to separate abutments or’ yards of concrete. It related to the contract in its entirety and as a promise was entire and indivisible, except as directed in time of payments to proportions of the whole.

“The practical construction put on a contract by the parties cannot control the express unambiguous provisions of the instrument itself.” 13 C. J. p. 548, and cases cited'

The claim that plaintiff waived his right to abandon the contract by proceeding with its performance after defendant admitted breach in failing to pay the amount withheld at the close of the 1912 season, is not applicable to the undisputed facts in this case. The refusal to pay the amount then and thereafter due, because of a “mistaken idea” as to its rights under the contract, was a continuous breach never rectified by defendant nor condoned by plaintiff. He continued to protest and demand payment, urging his need for it in order to continue the work, until he finally quit for lack of funds as the result of such continuing breach. Continued and repeated defaults in payment according to the provisions of a contract justify a contractor in abandoning the work before completion if the breach exists at the time of abandonment, particularly when necessitated by lack of funds to continue owing to such default in payment. Grand Rapids, etc., R. Co. v. Van Dusen, 29 Mich. 431.

The contention that defendant had advanced plaintiff at the time he quit material of greater value than the amount withheld is directed to the contention that gravel hauled by the county in the winter and charged by it to defendant in March, 1913, was for abutment work to be done by plaintiff and therefore a proper charge against him. Plaintiff testified that he was told by the engineer he would put gravel at No. 6 bridge, where the latter was going to work, and when he went there he found some gravel which he used, amounting to about 60 yards; that the county engineer charged it to him and rendered him a bill of $151.14 for its value, but for the abutments of the other bridge (No. 9) built by him in 1913 he got the gravel himself, hauling it about half a mile, and aside from bridge No. 6 he hauled and furnished all the gravel himself. In overruling defendant’s motion for a new trial the court refers to this claim as an “afterthought.” In correspondence between these parties contentions and claims of each as to plaintiff’s right to quit were discussed and on November 10, 1913, when plaintiff was urging payment of his claim, after he had quit and long after this gravel is claimed to have been furnished him, defendant wrote, in reply to his demand for what he claimed yet due him, as follows:

. “We have yours of the 24th inclosing statement for building abutments in the year 1912. We have your bond guaranteeing completion of the work in accordance with our contract with Gogebic county and we have letters on file regarding the floors on three jobs completed last fall, that you advised you could not possibly put these floors and accordingly we advised you we would go ahead with the work charging the difference in cost between our expense and our contract price to you.
“The expense of putting on these floors amounted to $788.56 and at the price you agreed upon this would have come to $480.29, leaving a loss on our part of $308.27, which amount we charged to you.
“This has been explained to you before and to the commissioners, and we do not see why you should bring up the matter again at this time.”

In accepting plaintiff’s proposal defendant advised him “we will expect you to do the floor work along with the abutment work.” When he desired to do just that, defendant, not having yet provided the structural material • which was necessary for that work, gave directions necessitating removal of his outfit to a distant part of the county to continue with his contract and then ordered him back late in the fall before that work was done to do the floor work he had previously proposed to do, “along with the abutment work,” when there. On his protesting, with full'explanation of his reasons for declining, it insisted with threats and took the position indicated in the above letter which was persistently maintained in violation of their contract until he quit, and until this case was tried.

If it was a question of law whether plaintiff waived his right to avail himself of this breach at the time he quit, the jury rightly decided it, and awarded him as the reasonable value of the work done up to the time he quit the contract price with interest at five per cent., less the amount he had already been paid according to the undisputed condition of their account— except that the item of $151.14 for gravel used by plaintiff at bridge No. 6 was apparently overlooked. He admits he did not pay for this himself and that it is a proper charge against him, if subsequently paid for by defendant, as is shown to have been the case. Under the undisputed evidence that item cannot be regarded as an afterthought, although urging the gravel he did not use or see as a charge against him sufficient in amount to relieve defendant of its breach might have been. The gravel he used and defendant later paid for does not, however, affect the rights of the parties at the time plaintiff quit, for defendant yet arbitrarily withheld money due him under his contract which he needed, not to buy gravel with but to pay his help, get cement, etc., in order to continue operations. He was entitled to be paid in money, not gravel. If gravel charged to defendant had been delivered by the county at other bridges, he did not see, accept, or use it. Defendant was not obliged to furnish it to him nor he to accept it.

Provided within 80 days plaintiff remits from this judgment $151.14, with proportionate interest, the same will stand affirmed, with costs; otherwise it must be reversed and retried.

Ostrander, C. J., and Bird, Moore, Brooke, Pellows, Stone, and Kuhn, JJ., concurred/


text:
    VILLAGE OF HAMTRAMCK v. SIMONS.
    1. Eminent Domain — Pubuc Necessity — Highways and Streets —Changed Conditions.
    Where proceedings were inaugurated by a village council by resolution under Act No. 176, Pub. Acts 1903 (1 Comp. Laws 1915, § 2784 et seq.), .to condemn a strip of land 11 feet wide adjoining a public highway on the west, the subsequent action of property owners on the west dedicating a strip 50 feet wide for street purposes would not affect the proceedings or the necessity for widening the original street, since, with the 11-foot strip between, it would remain the same width as originally.

      See note in 22 L. R. A. (N. S.) 1, 111.

      2. Same — Municipal Cobporations — Rescission.
    Where the council at no time rescinded its resolution or took official action to discontinue the condemnation proceedings by reason of the changed conditions, the questions of public necessity and compensation were for the jury; and the court was not divested of jurisdiction by subsequent events.
    3. Same — Evidence.
    The fact that streets had been dedicated adjoining the 11-foot strip was competent evidence for the jury to consider in determining the public necessity of widening the original street, and of taking the strip for that purpose.
    4. Same — Constitutional Law — Judicial Question.
    The question of the necessity for taking the strip as well as the just compensation to be made therefor was properly for the jury under Act No. 176, Pub. Acts 1903 (1 Comp. Laws 1915, § 2784 et seq.), which was not in conflict with article 13, § 1, of the Constitution.
    5. Same — Evidence—Sufficiency'.
    Evidence of necessity held, sufficient to carry that issue of fact to the jury.
    6. Same — Compensation—New Tbial — Overwhelming Weight of Evidence.
    Where the testimony as to the value of the strip was very conflicting, there being abundant testimony, if believed, to sustain a verdict for less than the amount awarded, as well as for more, the verdict for $2,500 was not so grossly against the overwhelming weight of evidence as to demand reversal.
    Case-made from ' Wayne; Hosmer, J.
    Submitted January 24, 1918.
    (Docket No. 177.)
    Decided June 3, 1918.
    Condemnation proceedings in justice’s court by the village of Hamtramck against David W. Simons for the widening of a street. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      James O. Murfin, for appellant.

      Seneca C. Traver (.Ignatius J. Salliotte, of counsel), for appellee.
   Steere, J.

On February 27, 1913, the village council of Hamtramck inaugurated by resolution proceedings to condemn a strip of land belonging to defendant 11 feet in width and about 2,600 feet long lying adjacent on the west to Joseph Campau avenue, for the purpose of widening that thoroughfare between Caniff avenue and Carpenter avenue. On petition of the village attorney, filed March 3, 1913, a jury was summoned and impaneled by a justice of the peace of Hamtramck township to determine the questions of necessity and compensation. On May 2, 1913, hearing was had and a verdict rendered by the jury so impaneled finding it necessary to take the property in question “for the use and benefit of the public,” and awarding the defendant $1,250 as compensation therefor. Judgment was entered by said justice confirming such determination and award. On May 26, 1913, appeal was taken by defendant to the circuit court of Wayne county where the issue was brought to trial before a jury on August 5,1915, resulting in a verdict determining it “necessary to take the private property described in the petition in the cause for the use and benefit of the public for the proposed public improvement,” and awarding to defendant as just compensation $2,225, upon which judgment of confirmation was entered by the court. Defendant then moved the court to set aside the verdict and award, which was denied and an appeal was thereafter taken to this court on errors assigned.

The three reasons argued in defendant’s brief against the verdict and confirmation complained of are thus stated:

“1. The village council never passed upon the necessity for a street 111 feet wide.
“2. The record affirmatively shows no necessity in the village of Hamtramck for a street 111 feet wide.
“3. The award of $2,225 was so conspicuously inadequate and contrary to the weight of the evidence as to amount to confiscation.”

These proceedings were taken by the village authorities under Act No. 176, Pub. Acts 1903 (1 Comp. Laws 1915, § 2784 et seq.) by which villages are authorized to take private property for public use when the necessity is determined and compensation awarded as provided, one specified use being “for the purpose of opening, widening, altering and extending streets.”

' The village of Hamtramck is a suburb of Detroit, directly adjoining that city on the north with blending intercourse of population and municipal activities, but retaining its corporate boundaries and organization as a municipality for local governmental purposes. Joseph Campau avenue is a prominent thoroughfare of Detroit which, commencing at the Detroit river, extends north through that city to the southern boundary of Hamtramck and, under the same name, continues on north through that village, in which it is said to be the principal business street. The business portion is chiefly, if not entirely, south of Caniff avenue, up to which it is 66 feet wide. Beyond Caniff to the north it is, or was when these proceedings were begun, but 50 feet wide between Caniff and Carpenter avenues. The narrow strip of land 11 feet wide sought to be condemned, lying immediately adjoining Joseph Campau avenue on the west and extending north and south between the two avenues, belonged to defendant. West of this strip the land belonged to others who it was shown were somewhat actively interested in promoting the condemnation, a Mr. O’Connor who was interested in subdivisions lying west of this strip filing a petition with, the village, council which inaugurated the action.

Defendant had owned this strip for 27 or 28 years. It was originally part of a tract which he platted in 1888 into a subdivision to the east of and including Joseph Campau avenue. He testified that practically all lots in the subdivision had been sold and passed into othér hands, “that is on that frontage,” and in explanation of the strip in question said:

“I was connected at one time with the company that first promoted that car line out there. When I recorded my plat and this lot was fixed in the location it was, I now recall the circumstances that brought about this condition. I made an effort to induce the parties who .owned the land on the west side of my property to join me in then and there making as a part of my plat a substantial .street. They refused. Thát was the reason I was unable to make my plat just the way I wanted it at the time I recorded this plat.”

Some time before this case was retried in circuit court, and as stated in defendant’s brief about six months after condemnation proceedings were inaugurated by the village, the owners platted and subdivided the land to the west of this strip between Caniff and Carpenter avenues and opened a 50 foot street along their east front adjoining it, leaving the strip between two 50-foot streets so that the result of its condemnation is. a street 111 feet wide. This counsel contends was never passed upon or determined to be a necessity by the village council, which only determined the necessity of and intended to widen Joseph Campau avenue to a street 61 feet wide.

The village engineer who prepared the map attached to the petition showing surrounding conditions and the proposed widening testified that there had already been 50 feet given on the other side’ of the strip, and when disputed by counsel for defendant who said “that was not acquired until six months after — the Croul-Moran plat,” testified, “the plan of it shows practically half the way up there was 100 feet already dedicated.” It was shown that the Moran & Croul subdivision was recorded August 15, 1915, and the O’Connor subdivision in February, 1913, which together include the street to the west of this strip, as is inferable from the evidence although the plats and plans referred to are not in the record or files of the case. Just what information the council had before it when the resolution of necessity for condemnation was passed on February 27, 1913, is not shown, but its determination was directed to the 11-foot strip described by metes and bounds, which yet restricts the widening of Joseph Campau avenue as before, followed by commencement of condemnation proceedings in March, 1913, and judgment in justice’s court confirming the finding and award of a jury in May, 1913. Presumably the village authorities had knowledge of the subdivisions platted and streets dedicated within their municipal boundaries, as the duty rested upon the municipality to care for its highways. The council at no time rescinded its resolution or- took official action to discontinue the condemnation proceedings by reason of changed conditions. Its determination of necessity was but an initiative jurisdictional prerequisite. Final determination of public necessity and compensation were for a jury, upon the facts shown at the hearing. The question of public necessity for taking that strip for the proposed improvement was put in issue by these proceedings and the court was not divested of jurisdiction by subsequent events. It remained, as before, for plaintiff to show to the jury upon the hearing by a preponderance of evidence that the necessity existed, and upon that issue the defense might show that there never was any necessity or that it no longer existed. Defendant was not restricted in testimony or argument to the jury along those lines, so far as appears.

The fact that streets had been dedicated adjoining this strip against which condemnation was directed was before the jury as competent evidence to consider in determining the public necessity of widening Joseph Campau avenue and of taking this strip for that purpose.

It is also urged upon the showing made, a verdict should have been directed for defendant since our Constitution authorizes such taking of private property only in case of necessity, and where it is so provided “the necessity becomes a judicial question,” citing 4 McQuillan on Municipal Corporations, § 1467. But our Constitution provides (Art. 13, § 1):

“Private property shall not be taken by the public nor by any corporation for public use without the necessity therefor being first determined and just compensation being first made or secured in such manner as shall be prescribed by law.”

The statute under which these proceedings were brought provides that the necessity therefor shall be determined by a jury and prescribes the form of oath to be administered. In Commissioner of Parks, etc., of Detroit v. Moesta, 91 Mich. 149, a local condemnation act was held constitutional which committed the question of necessity to a jury which should be “sworn to ascertain and determine the necessity for taking the several parcels of land sought to be taken for the purpose set forth in the petition, and, if taken, to- determine and award to each person entitled thereto the proper compensation to be allowed,” etc., the court saying that “the question of necessity for taking the property, including the public necessity for making the improvement, is as fully committed to the jury as is the question of compensation.” Upon the issue of necessity the court said:

“In order to justify a finding of necessity, it must appear that the improvement was a convenience, — a benefit to the public of sufficient importance to warrant the public in incurring the expense in making it.”

Upon this subject the trial court instructed and cautioned the jury in part as follows:

“It can never be just to take property under pretext of public benefit, which is not needed by the public, however much it may advance interests in which the public have no concern, and it can never be legal to compel any man to give up his property when it is not needed or to lose it whether needed or not without being made whole. . The Constitution does not allow property to be taken unless there is a public necessity for it, and this must be a real necessity. There is no question about that. I do not mean, gentlemen of the jury, by the words ‘real necessity’ that it would be impossible for the people to use the street. I do not mean that it must be shown that the growth of Hamtramck or the surrounding country would be limited by reason of that, but there must be a really public convenience before the property should be taken.”

Upon the question of necessity the existing conditions at the time of the trial were fully gone into and testimony was produced by plaintiff to the effect that the widening of Joseph Campau avenue as proposed would give more convenient access to that thoroughfare from the west in that section, on which were the only street car facilities to the city; that the fire department would secure better facilities for service against fire in that vicinity, owing to the location of hydrants, and other embarrassments from the then condition of the street which could be obviated if it was widened; that better and more direct access to schools would be afforded children in that locality, and if the street was widened it could be paved, sidewalks laid along it and conditions for traffic and travel improved for the convenience and safety of the public, to greater advantage than with its present width. We think the -evidence of necessity was ample to carry that issue of fact to the jury. City of Detroit v. Brennan & Co., 93 Mich. 338. In denying defendant’s motion to set aside the verdict the learned trial judge who had knowledge of the locality and heard the witnesses testify said:

“I think there is no question but what there would be a great improvement so far as the public is concerned in the acquisition of this strip as a part of the public highway and I am satisfied that the public necessity exists therefor.”

It is further urged that the award was so inadequate and contrary to the weight of evidence as to amount to confiscation. As to the official appraisement of presumably disinterested persons selected according to law and sworn to well and truly determine the question, 12 freeholders “residing in the vicinity of the property,” selected as most satisfactory to the parties of the 24 summoned before the justice’s court, awarded as just compensation $1,250. Upon retrial in the circuit court 12 more jurors “freeholders of the county residing in the vicinity of the property,” selected from 24 summoned as the statute prescribes, awarded $2,225 as in .their judgment just compensation. On appeal to the circuit court defendant claimed the value was “to wit, the sum of fifteen thousand eight hundred and forty dollars ($15,840).

As to the value of this 11 feet wide strip, eight real estate agents and dealers residing in Detroit, including plaintiff, gave presumably expert testimony ranging in appraisement of the property at from $600 to $26,640. Four of these put the value below the amount awarded by the jury. Defendant’s witnesses made their estimates mainly on a front foot basis as affording available sites for business buildings, varying somewhat according to their optimism in that particular. One other witness, residing in Highland Park, not engaged in the real estate business but who owned real estate in Hamtramck and had sold a few lots there, for one of which he got “about $40 a foot,” thought this strip would sell at “from $8 to $10 a foot running along.” There was a conflict of testimony as to whether a strip of that width and so located could be profitably utilized or had any value for business buildings, should a demand for business locations develop in that locality.

Stress was laid by defendant on a land contract he was permitted to introduce in evidence by which it is shown he sold 450 feet of this strip to a prominent real estate operator in Detroit for $4,000, one hundred dollars down, and the balance in deferred payments of ten dollars a month or more. This contract was dated July 20, 1914, after this proceeding had been heard in justice’s court and was pending on appeal by defendant. But one deferred payment of $10 is shown to have been made. The purchaser when called as a witness by defendant appraised the strip at $5 per foot, but testified he had never sold a lot out there, and named as his agents, conducting operations for him in the village of Hamtramck, two witnesses who he thought “were fairly well posted on. values out there,” each of whom appraised this property at less than the amount awarded by the jury. These matters, and others which need not be rehearsed were before the jury to pass upon and give such weight as to actual value as in their judgment they were entitled to. The court stated the jury might view the premises if they wished. It is said in plaintiff’s brief and not disputed that they did. It seems fairly evident that as a probable result of the rapid growth of Detroit and the then activity in suburban real estate the views of Detroit real estate experts as to what the value of this strip was, or would be, were singularly chaotic and conflicting beyond reconciling analysis. Their interest, experience, apparent intelligence, and credibility were for the jurors, before whom they appeared as witnesses, to pass upon. There was abundant testimony, if believed, to sustain a verdict for less than the amount, as well as for more. It was the province of the jury to determine the facts and make the award. As intimated by the trial judge in denying defendant’s motion to set aside the verdict and judgment of confirmation, what the court might have awarded if authorized and required to pass upon the disputed facts and make the award is not the question, and we cannot conclude from this record as a matter of law that the verdict was so grossly against the overwhelming weight of evidence as to demand reversal.

The judgment is affirmed.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, and Stone, JJ., concurred. Kuhn, J. did not sit.


author: Kuhn, J.

text:
    WARE v. CITY OF BATTLE CREEK.
    1. Words and Phrases — “Perquisite”—Compensation.
    The word “perquisite” means some emolument or profit beyond the regular salary paid.
    2. Municipal Corporations — “Perquisite”—Office Rent — Ordinances.
    The allowance of office rent by a city council to its city attorney, which he had to disburse, was not a “perquisite” within the meaning of an ordinance providing that he should receive a stipulated salary but should “not be entitled to any fees or perquisites of office in addition to his salary.”

      3. Same — Failure to Locate Oeeice — Acquiescence.
    Wliere the city council failed to' designate the place where the office of the city attorney, should be kept, as provided by ordinance, its failure to do so or to raise any objection to the place selected by him amounted to acquiescence on its part in his selection.
    Case-made from Calhoun; North, J.
    Submitted January 18, 1918.
    (Docket No. 129.)
    Decided June 3, 1918.
    Assumpsit by William E. Ware against the city of Battle Creek for an amount allowed by the common council for office rent. Judgment for defendant. Plaintiff appeals.
    Reversed, and remanded.

      William E. Ware (Burritt Hamilton, of counsel), in prb. per.

      Joseph L. Hooper, City Attorney (Howard W. Cavanagh, of counsel), for appellee.
   Kuhn, J.

This case 'was tried by the court without a jury under stipulated facts from which it appears that the plaintiff, under a lawful appointment, occupied the office of city attorney for the city of Battle Creek, defendant, from May 1, 1910, to April 7, 1911. Section 1 of the ordinance of June 15, 1903, is as follows:

“The city attorney shall receive an annual salary of $1,200.00 to be paid monthly and shall not be entitled to any fees or perquisites of office in addition to his salary, except actual expenses while engaged in the discharge of his official duties when out of the city.”

Section 1 of chapter 1 of the ordinance of February 26, 1900, provides:

“Be .it ordained by the common council of the city of Battle Creek that the offices of the mayor, recorder, treasurer, assessors, city attorney, street commissioner, chief of police, and other city officers shall be kept in such places in said city of Battle Creek as the common council thereof may from time to time direct.”

There was no office provided by the city for the city attorney and the common council of the city had never directed where the city attorney should keep his office. At the time of the appointment of the plaintiff as city attorney, he occupied an office for the transaction of his private business as an attorney, and continued after appointment to occupy the same office. On July 25, 1910, nearly three months after plaintiff had entered upon the discharge of his duties as city attorney, the common council of the defendant city passed the following resolution:

“By the committee on ways and means: Resolved by the common council of the city of Battle Creek, that the city attorney be allowed forty dollars per month out of the general fund for office expenses payable at the second regular meeting of the council each month until May 1, 1911. And the mayor and recorder are hereby authorized and directed to execute and deliver to him a warrant payable out of the general fund for $80.00 to cover his office expenses to July 1, 1910.”

Payment of $40 per month as provided by the resolution not having been made by the city, this suit was brought by plaintiff to enforce such payment. The learned trial judge, after a careful consideration of the stipulated facts and the law applicable thereto, entered a judgment in favor of the defendant.

Counsel for both parties seem to agree that the sole question in controversy in this court is whether the common council were authorized, without repealing or amending the ordinance relative to the salary of the city attorney, to by resolution bind the city to pay him $40 per month, “for office expenses.” It is the contention of appellant that the sum allowed “for office expenses” is neither a fee nor a perquisite within the meaning of the language of the ordinance fixing the salary of the city attorney. The word “perquisite” is variously defined as:

“An allowance paid in money or things beyond the ordinary salary or fixed wages for services rendered; especially a fee allowed by law to an officer for a specific service.” (Webster.)
“Emoluments or incidental .profits attaching to an office or official position, beyond the salary or regular fees.” (Black.)
“Perquisite means something gained'by a'place or office beyond the regular salary or fee.” (Bouvier.)

Appellant cites and relies upon 23 Am. & Eng. Enc. Law (2d Ed.), pp. 388-389, where it is stated:

“Where the law requires an officer to do what necessitates an expenditure of money for which no provision is made, he may pay therefor and have the amount allowed him. Prohibitions against increasing the compensation of officers do not apply to such cases. Thus it is customary to allow officers expenses of fuel, clerk hire, stationery, lights and other office accessories.”

The rule as stated in 29 Cyc. pp. 1427, 1429, is as follows:

_ “Where the compensation is fixed by the constitution, or where there is a constitutional provision prohibiting such change during the term of an incumbent, no change of salary during such term is permissible, and, where a similar provision is contained in a statute, the powers of municipal corporations are subject to the same limitation. * * * Such limitations do not affect provision for ^expenses, except that use may not be made of a power to increase an allowance for expenses so as to increase the compensation received by an officer; nor do they prevent the legislature or its delegate * * * from granting clerical aid or an allowance for clerk hire.”

Appellant also cites the case of Pistorius v. Saginaw County Sup’rs, 51 Mich. 125, and Messmore v. Kracht, 172 Mich. 120, as bearing upon the question. See, also, State v. Sheldon, 78 Neb. 552; Hill v. City of Clarinda, 103 Iowa, 409; DeKalb County Sup’rs v. Beveridge, 16 Ill. 312; Andrews v. United States, 2 Story (U. S.), 202.

It seems to us plain, under the authorities above set forth, that the word “perquisite” means some emolument or profit beyond the salary which was paid to the city attorney, and cannot be said to mean moneys which were allowed him for expenses, because there was no profit or emolument to him in the allowance for office rent, which he had to disburse. The city had the use of the office, and the common council, while it failed to designate the place where the office of the city attorney should be kept, still had the right to so designate, and its failure to designate or to raise any objection to the place selected by the city attorney, in our opinion amounts to an acquiescence on its part in his selection. We therefore are of the opinion that the learned trial judge was in error in holding that the rent of the office which was actually used by the city attorney in the discharge of his official duties, was a perquisite of his office, and therefore conclude that the judgment should be reversed and the case remanded to the court below with directions to enter a proper judgment in accordance with this opinion for the amount agreed upon as due to the plaintiff, with costs of both courts to be taxed to the plaintiff.

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


author: Brooke, J.

text:
    SLINGER v. MUSKEGON MOTOR SPECIALTIES CO.
    Master and Servant — Workmen’s Compensation Act — Loss oe Eye — Disability—Amending Award.
    Where claimant, while in defendant’s employ, received an injury to his left eye, and an agreement to pay compensation during disability was entered into, and on recovery from the lesion claimant was unable to see as well as he should have done, and an examination disclosed that he was suffering from a constitutional disease which caused his largely impaired vision, he having only about one-fifth vision in his right eye, and about one-fortieth in the left, on petition of defendant to the industrial accident board to be relieved from the payment of further compensation, the board should have made an award under the workmen’s compensation act based upon the loss of one eye only, since the impaired vision of the left eye, which was practically the entire sight, was caused in part at least by the injury, but no injury to the right eye was ever received in defendant’s employ.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted January 8, 1918.
    (Docket No. 1.)
    Decided June 3, 1918.
    Richard Slinger was injured while in the employ of the Muskegon Motor Specialties Company and entered into an agreement for compensation during disability: On petition of defendant and the Zurich General Accident & Liability Insurance Company, Limited, insurer, to be relieved from further payments. From an order denying the petition, defendants bring certiorari.
    Reversed, and remanded.

      Kerr & Lacey, for appellants.

      Galpin & Broek, for appellee.
   Brooke, J.

On August 17, 1915, claimant, while in the employ of the appellant removing refuse from & tank attached to a camgrinder, received an injury through the lodgement of a foreign substance in his left eye. The right eye was not at that time injured, but by reason of an injury to the right eye received when a small boy the sight of that eye was not so good as the sight in his left eye. Claimant received immediate medical attention, the foreign substance being 'removed from the left eye. Due to the injury, however, an ulcer formed upon the left eye resulting in what is termed keratitis. The record discloses that the injury to the left eye was external and did not affect in any way the deeper structures of the eye. Continued treatment effected a cure of the lesion in the left eye, but a scar remained which interfered to some extent with vision in that eye. Shortly after the injury an agreement to pay compensation during disability at the rate of $5.50 per week was entered into by the parties and payments were made thereunder from October 9, 1915, to May 27, 1916. Upon recovery from the injury claimant was unable to see as well as, in the opinion of the attending oculist he should have done. Careful examinations of the plaintiff’s eye were made by at least three oculists under the influence of medication and produced dilatation and they assert they found conditions in the back of the eye that the injury to the left eye had nothing to do with, and concluded that the claimant was suffering from some constitutional disturbance which caused his largely impaired vision. They recommended that an examination of the claimant’s blood be made and the Wassermann test for syphilis be applied by Dr. Brotherhood. This was done with the result that the test gave a four plus positive reaction for the presence of syphilis. While the physicians admitted that the failure of the Wassermann test to show a positive reaction does not certainly indicate the absence of syphilis, they seem to agree that when the test shows a positive reaction the presence of the disease cannot be doubted. Based upon the unsatisfactory results of the lengthened treatment accorded claimant and the blood test, respondent concluded that claimant’s present condition is attributable not to the injury received on August 17, 1915, but to the constitutional disorder above indicated, thereupon and on May 26, 1916, a petition to the industrial accident board was filed by the respondent praying to be relieved from the payment of further compensation or for such other and further relief in the premises as was just and proper. Upon the hearing of this petition the facts above narrated were made clearly to appear through the claimant’s own testimony that he never received any injury to his right eye while in respondent’s employ and all the physicians who spoke upon the subject testified that the present impairment of vision in his right eye was in no wise attributable to the injury to the left eye. The prayer of the petition was denied by the board and this order of denial is now reviewed in this court by the respondent who claims that there is no testimony in this record which would warrant the board in compelling the payment of the agreed compensation during a period of disability caused not by the injury, but by a constitutional disease.

As nearly as we can gather the facts from this record, claimant now has about one-fifth vision in his right eye and about one-fortieth of normal vision in his left eye. The measure of vision now remaining to claimant in his left eye is so slight that we think for the purposes of the application of this act, he should be considered as having lost the sight of that eye entirely. That the present condition of the left eye is due in'part at least to the injury seems clear from an examination of the evidence of Dr. Gamber, a specialist who treated claimant. He testified in part as follows:

“Q. Then you would not want to state positively just what his sight would have been in his left eye today if it was not for this injury?
“A. No; no one on earth can do so, if it had had the same' treatment we would naturally suppose, if the eyes were alike previous to the injury, that they would be the same now; that is the only thing we could suppose.
“Q. And they aré not that way, so his trouble in the left eye is attributable to the injury as compared with the right?
“A. In part; I can’t help but look on it that it is in part due to the injury. * * *
“Q. There is a vast difference between the condition of his left eye and his right eye as far as responding to treatment?
“A. Yes.
“Q. That difference would be measured probably by the injury?
“A. Well, no other way to measure it except that, considering, of course, that you don’t know just how the vision of the two eyes compared before the injury.”

From an examination of the entire record we are of opinion that the board was in error in denying respondent all relief under its petition. The record is clear that claimant suffered no injury to his right eye through the accident and it is equally clear that he has lost practically the entire sight of his left eye which loss is, in part at least, attributable to the accident. The board should have made an award under the statute based upon the loss of one eye only. Weaver v. Motor Co., 186 Mich. 588.

The award is reversed and the case remanded to the industrial accident board for further proceedings under the act.

OSTEANDEE, C. J., and BlED, MOOEE, STEEEE, FELLOWS, Stone, and Kuhn, JJ., concurred.