text:
    HOLMES v. COMMON COUNCIL OF DETROIT.
    Municipal Corporations — Public Contracts — Specifications— Monopolies.
    The fact that material to be used in the construction of a pavement or other public work is in the hands or under the control of a single dealer, whether by reason of a patent or otherwise, does not preclude the specific'ation of that material in a contract for such improvement to be let on competitive bidding.
    Appeal from Wayne; Hosmer, Lillibridge, and Carpenter, JJ.
    Submitted January 27, 1899.
    Decided May 23, 1899.
    Bill by Frank B. Holmes and others to enjoin the common council and the board of public works of the city of Detroit from confirming a certain paving contract. From a decree for complainants, defendants appeal.
    Reversed.

      Warner, Codd & Warner, for complainants.

      Charles Flowers (John J. Speed, of counsel), for defendants.
   Hooker, J.

The law creating the board of public works of the city of Detroit provides that all paving shall be done “upon contracts and under specifications to be prepared by such board and approved by the common council,” and directs that “the board shall advertise for proposals to execute the work according to plans and specifications, and the board may contract with the lowest responsible bidder.” 3 Laws 1873, Act No. 392, § 18. The board adopted specifications for repaving its streets, and these were approved by the common council. It was apparently designed.to have some uniform rule. These provided that all brick should be of a quality to be approved by the board of public works, and equal to approved samples in its office, and that each bidder should state in his bid the kind of brick that his proposition was based upon, which should be of such kind as had been approved by the board of public works. In December, 189?, tests were made under the direction of the board, and three kinds of brick were approved, viz., Nelsonville, Metropolitan, and Century. On April 29, 1898, the board advertised for proposals for repaving Atwater and other streets according to these specifications, each bidder being requested to name in his bid a separate price on each of the three kinds of brick mentioned. The complainants were bidders, as was also John McLaughlin. His bid named the kinds of brick which he proposed to use. The bid of the complainants did not, but was accompanied by a letter which stated that they proposed to furnish “paving block brick of established reputation, that have been tested by the city of Detroit in the recent test by your body, and also the common council, and which have demonstrated in that test, and also in use in different cities, to be equal at least to the Metropolitan, Century, and Nelson-ville blocks; and we are prepared to enter into a contract, and guarantee these goods equal to those named.”

The board of public works rejected the bid of Holmes & Strachan for the reason that it did not name the kind of brick, as mentioned in the advertisement and as required by the specifications, and reported the bid of McLaughlin, as the lowest bid, to the common council, accompanied with the proper contact for confirmation. The bid of Holmes & Strachan named a lower price than the bid of McLaughlin for which they would do the work. The object of the present suit on the part of complainants is to restrain the common council from confirming the McLaughlin contract. The ground upon which this relief is asked is that the sale of the three kinds of brick in Detroit is controlled by one Stevens, who, as agent for the manufacturer, has exclusive authority in that market, and that there was therefore a monopoly, and- no competition in the bidding. The circuit court so held, and the board was enjoined from executing the contract.

Complainants’ proposition seems to be that, under the . charter, no paving contract shall be let which involves the use of any. material which, by reason of its exclusive production, is not subject to competition, or perhaps, more accurately, complainants’ claim is that such contract cannot be made for the use of such material except when it has been subjected to a competition with some other material. This would result in some serious consequences. If such is the rule, the city may be denied the right to have the pavement that it wants, because some one is willing to furnish something else, that may be thought equally good, for a less price. One or two blocks of a street may be paved with Nelsonville brick, but, when it is desired to extend the pavement, they cannot take bids, and proceed to pave with the same, if some other brick can be obtained cheaper. It may be that the cheaper price is made by interested parties, at a loss, to injure a rival, or for some other ulterior purpose, or because of insolvency, or it may be untried brick,.or it may happen that the competing brick is not likely to be thereafter obtainable for repairs.. But this would make no difference; the city must be subjected to these dangers and inconveniences, because it can obtain a lower bid. Thus, a pavement would be likely to be of a variegated pattern. This doctrine, carried out to its logical consequences, would prevent a city from doing any public work after an intelligent and well-digested plan, and the harmony and beauty of public improvements would be impaired. Whenever any article that should be the subject of a monopoly should be found to enter into a building or other improvement, the contract would be void, and payment could be enjoined by any taxpayer, if complainants’ claim rests on solid ground. In this age of improvement and competition, we should not hold that municipalities are denied the' most modern methods and improvements, unless it is clear that they have been prohibited. Many valuable innovations involve patents; others are introduced through agencies, as in this case, and they are therefore practically controlled by one person or firm. Again, some kinds of stone come from a single quarry; limes and cements differ in quality, and some may not be safely used; and in many instances the superiority of a given article is generally recognized. In this instance the fact that the Nelsonville brick are handled by a single agent has no especial significance, for hack of the agent is the principal; and it goes without saying that he fixes the price, and has his monopoly, whether he has one agent or more.

The gist of the complainants’ claim is that the city cannot specify the brick or other material made and controlled by one manufacturer, but must open the proposed improvement to competitors, and submit to the consequences of competition. It is to the interest of the greater number of manufacturers to have such a rule adopted, yet it is not a rule that private persons adopt in their own. matters, for obvious reasons. This departure from such business principles is based upon the danger of supposed venality of public officials. The consequence is that, when a public work is to be undertaken, those having it in charge are seldom left to conduct their negotiations, make the contracts, and answer to the public for a faithful performance of duty. Every one who has anything to sell insists on being heard; one accuses another of bribery; the hoard having the matter in charge, and its individual members, are accused of corruption; and after the award the work is delayed by litigation and injunc: tions, to the great inconvenience and cost of the taxpayers, and almost uniformly without any good result. So prevalent are these practices that they have become most serious obstacles to public improvement, and prolific sources of slander and vituperation, until many of our best citizens refuse to give to municipalities the benefit o'f their services, lest they be subjected to such charges. These things are so common that we may properly take notice of them, and we may well doubt a construction of a law which shall encourage them and produce such results. A more sensible view to take would seem to be that those charged with the making of an improvement should determine definitely what is wanted, and then advertise for bids, and let the contract to the lowest responsible bidder, leaving him to procure the material required as best he may. Such is the view entertained by many eminent jurists. There are others who have thought it necessary to eliminate every element of monopoly, in a vain effort to prevent any corruption whatever, and permit the use of no materials which could not be bought in the open market, or at least frorn competitive bidders. Such a case is Fishburn v. City of Chicago, 171 Ill. 338 (39 L. R. A. 482, 63 Am. St. Rep. 236), where it was held that specifications could not lawfully restrict bidders to the use of one kind of asphaltum, which was produced by one concern. The strongest argument of that case is the following, which probably states the merits of the question as strongly as it can be stated:

“But it may be said that cities, in the construction of public improvements, ought to have, as have individuals in the construction of private structures, the right to select for use the article or substance best fitted and adapted to the purpose, and that to deprive the public of the right to select and use such superior articles is opposed to public policy, and positively disadvantageous to the public. The force of this argument must, of course, be admitted; but, upon reflection, it is readily seen it is not necessary to foster and create a monopoly, and prevent competition in the letting of public contracts, by providing in ordinances that a certain substance or article, and no other, shall be used. If it be the judgment of the city council that the most suitable and best material to be used in any contemplated improvement is the product of some particular mine or quarry, or some substance or compound which is in the control of some particular firm or corporation, the ordinance might be so framed as to make such production, substance, or compound the standard of quality and fitness, and to require that material equal in all respects to it should be employed. An ordinance making it indispensable that an article or substance in the control of but a certain person or corporation shall be used in the construction of a public work must necessarily create a monopoly in favor of such person or corporation, and also limit the persons bidding to those who may he able to make the most advantageous terms with the favored person or corporation. If all the ordinances adopted by the city council of the city of Chicago providing for the paving of streets and public places in the city should select the stock in trade of a particular firm or corporation as the only material to be used in making such street improvements, the evil would be intolerable; and, if they may lawfully select such article in one ordinance, it cannot be unlawful to make it the settled policy of the city that material for paving streets shall be purchased of but one seller. Because of the error of the court in ruling the proffered testimony was inadmissible, the judgment must be reversed, and the cause remanded.”

This case seems to rest on Illinois decisions.

We are cited to the case of Dean v. Charlton, 23 Wis. 590, where it was -held:

“Where a city was empowered by its charter to improve streets at the expense of adjoining lot owners, but required to let all such work to the lowest bidder, it could not contract for laying a pavement at the expense of such lot owners, the right to lay which was patented, and owned by one firm.”

It is obvious that a patented article is much more certain to be the subject of a monopoly than brick manufactured from certain clay and by certain parties, and therefore much more likely to require the application of the rule contended for. Yet this court has held that such may be specified by cities. Attorney General v. City of Detroit, 26 Mich. 263.

Counsel seek to draw the line at patented articles; but we see no distinction between brick made by the Nelson-ville company under patents, and brick made by the same company, but not under patents. In the concurring opinion of the late Chief Justice Christiancy in the case cited, he places a construction upon such laws as that under discussion which commends itself to our approval. He says:

“When the pavement of a street is in contemplation, there are two kinds of competition which it is very desirable to create among those who may wish to undertake the work: First, that between the different kinds of pavement, or' those prepared to engage in putting them down; and, second, that between parties prepared to put down the same kind. It is the latter species of competition, only which the charter requires the city officers to take measures to secure, and it is for this • purpose only that it requires publication of the notice, plans, and specifications. * * * But those bids only which had reference to the same particular kind, and to the same specifications, could be considered as competing bids, for the purpose of determining who was the lowest bidder, within the meaning of the charter.”

In Kilvington v. City of Superior, 83 Wis. 222 (18 L. R. A. 45), it was held:

“The fact that the mode of building the crematory was patented did not render a contract therefor invalid, under section 921, Rev. Stat. (requiring it to be let to the lowest bidder), where the entire work was done at the general expense of the village, and the use of the patent was offered to the village and to all contractors at a fixed price, and there was free competition as to everything else. Dean v. Charlton, 23 Wis. 590, distinguished and limited.”

The court said:

“Upon the authority of Dean v. Charlton, 23 Wis. 590, it is .contended that, as the mode of building the crematory was a patented one, the contract was void, on the ground that there could not be fair competition in 'bidding for the work, which by the charter was required to be let to the lowest bidder. Rev. Stat. § 921. The case of Dean v. Charlton was decided by a divided court, and there was a vigorous and able dissenting opinion by Chief Justice Dixon. The legislature subsequently validated the assessments so held void in that case, and in Mills v. Charleton, 29 Wis. 400 (9 Am. Rep. 578), and Dean v. Borchsenius, 30 Wis. 236., the validity of this legislation was sustained. Since that time the direct question involved in that case, which was in respect to assessments against abutting lots for paving the street, has not been before the court; but in Dean v. Charlton the majority of the court, after commenting upon the ■ case of Harlem Gaslight Co. v. Mayor, etc., of New York, 33 N. Y. 309, expressly disclaimed deciding whether the city might not have contracted for laying such pavement at its own expense, under its general municipal pow;ers, which is really the question here presented. In view of the legislation which followed Dean v. Charlton, and the fact that it was decided by a divided court, and the general tenor of subsequent decisions, and the further fact that patented methods and processes now enter so largely into various classes and kinds of public work, we are not disposed to extend the rule of that case beyond the particular point there decided. In Hobart v. City of Detroit, 17 Mich. 246 (97 Am. Dec. 185), and Motz v. City of Detroit, 18 Mich. 515, decided at about the same time, a contrary conclusion was reached; and in Nicolson Pavement Co. v. Painter, 35 Cal. 699, and Burgess v. City of Jefferson, 21 La. Ann. 143, the rule of the majority of the court in Dean v. Charlton was sustained. Since then, in Re Dugro, 50 N. Y. 513, the question has been decided in conformity with Hobart v. City of Detroit, supra, and other like cases; and in Yarnold v. City of Lawrence, 15 Kan. 126, 131, Brewer, J., notices the diversity of judicial opinion on the question, and is inclined to favor the views of the courts of Michigan and New York. Baird v. Mayor, etc., of New York, 96 N. Y. 567.
“In the present case there was a definite, well-settled price for the patent and specifications, at which it was held and offered to the city and all contractors, which would limit the recovery of the patentee, so that in fact there was free competition for the work and materials, and all else except the patent. The city had the benefit of all the competition of which the nature of the work admitted; and in such cases, yrliere the entire work.is done at the general expense of the city, the statute ought not to be so construed as to exclude the city from availing itself of defeirable patented works or improvements, as to which there is but one price, and for which there can, in the nature of the case, be no competition, and when for performing the work and furnishing materials the advantage of competition is secured. While the rule of Dean v. Charlton, 23 Wis. 590, may be' upheld as applied to assessments charged against abutting lots, where the lot owners have the right secured to them to construct in front of their property the improvements for or in which a patented method or process is used, we cannot see that there is any good reason to hold that the statute applies to the patented mode or process, when in respect to all else the statutory requirement of competition is secured. Under any other theory a municipal'corporation would be obliged to forego the purchase and use of all patented implements, modes, or processes,- — a result which we cannot think the legislature contemplated.”

The case of Mayor, etc., of Newark v. Bonnell, 57 N. J. Law, 424 (51 Am. St. Rep. 609), is in point, also.

The case of In re Dugro, 50 N. Y. 516, sustains the authority to use patented articles. In the opinion it was said:

“Section 104 of the act is relied upon as a limitation upon the powers of the common council, to the extent of a prohibition to undertake any work, or order or direct the making or paving any street, in a manner or with a material which will not admit of competitive bids or proposals. It requires all work to be done and supplies to be furnished by contract when the expenditure will exceed $1,000, and directs all contracts to be made or let after an advertisement for proposals, and to the lowest bidder. The statute was complied with, in that the proper officers of the city did advertise for bids or proposals for paving the street, and the contract was let to the only bidder, and at the price named in the bid. , The objection is that the Nicolson pavement was patented, and the right to lay it was in a single person or corporation, and that, therefore, the advertisement being for bids to pave the street with that particular pavement, there could be no competition, and the form of advertising for and receiving bids, and acting upon them, was but a form, and was not, and could not be, a compliance with the act looking to competition; and it is claimed that the contract based upon the proceedings was void, and the assessment for the work therefore illegal.
“It is urged, because a statute prescribing general rules for the exercise of the powers granted to the municipal corporation are not, in all their detail, applicable to every case that may arise, that, to the extent they cannot be applied, the powers are. annulled and cannot be exercised. This would be to give undue effect to the act prescribing the forms of procedure, and modal in its character, at the expense of the general grant of power. Whether the corporate authorities could or should have known that there could be no possible competition for the work (if such was the fact, which is not entirely certain), and, knowing that, could or should have made a contract without advertising for bids, need not be considered. There is no pretense of fraud, or that the contract, as made, was not a provident and proper contract, and reasonable and right in all its terms and provisions, so that the form of advertising and receiving bids cannot vitiate it, even if no such procedure was necessary. The general rule is — and this case does not form an exception — that statutes prescribing forms of procedure, and providing for the orderly conduct of proceed- ■ ings by public officers or bodies, are only obligatory to the extent and in cases to which they are by their terms applicable. The legislature cannot be presumed to have intended to declare that no power should be exercised, or work done, or supplies furnished, unless of a character that would admit of competitive bids. The grant of power was for public purposes, and the discretion vested in the common council was in the interests of the public; and neither the public nor the parties to be benefited by local improvements can be deprived of the benefit of this discretion, or the right to the best or most improved pavements, because full effect cannot in a particular case be given to an act designed for another purpose, to wit, to regulate the exercise of, and not to limit, the power. In other cases in this court a like statute, intended to accomplish the same purpose, that is, the performance of work and the furnishing of supplies at the lowest price and on the most favorable terms, although sufficiently broad in its terms to include the contracts and the services in question, was held not applicable to, and therefore as not embracing, them. People v. Flagg, 17 N. Y. 584; Harlem Gaslight Co. v. Mayor, etc., of New York, 33 N. Y. 309.
“This case is not within the precise principle ruled in those cases, but it is quite analogous, and much of the reasoning of the judges who then spoke for the court is entirely applicable here. A thing within the letter is not within the statute unless within the intention. The act of 1870 can have full effect in cases to which it can be applied, but, if there are cases to which it could not be reasonably applied, they are not within the intention, and therefore not within the statute. It seems to be absurd to say that all powers and all authority is by necessary implication taken from the municipal authorities, except such as can be exercised in strict conformity to this one provision of law; that this section of the law of 1870 is to be the touchstone to determine the limit and extent of the powers vested in the common council, and that all other acts must conform to it. It should rather be interpreted with respect to, the other statutes to which it is ancillary. The decisions of the courts in Wisconsin are adverse, while the Michigan courts are in accord with the views now expressed. If, as alleged, there could be no competition for the paving with the Nicolson pavement, the common council had nevertheless the power to cause the street to be paved with it; and it is simply a case not within the statute,, although the words are broad enough to include it. It constitutes one of the necessary exceptions to it. No other question was presented upon this appeal; the counsel, in terms, limiting the discussion to the operation and effect of the provisions of the act of 1870, requiring certain contracts to be given to the lowest bidder after an advertisement for proposals.”

In Fones Hardware Co. v. Erb, 54 Ark. 651 (13 L. R. A. 353), the view entertained by Chief Justice Christiancy was approved. The Arkansas court said:

“When a contract to build a bridge is to be let, there are two kinds of competition that may arise: First, that between persons desiring to build different kinds of bridges; and, second, that between those desiring to build the same kind. And, as was said by Judge Christiancv in discussing a provision similar to that under consideration, the bidding which it contemplates is of the latter kind, — bidding for the same particular thing, to be done according to the same specifications; for, says he, no bids for different kinds of work, and referring to different specifications, could be recognized as coming in competition with each other, for the purpose of determining the lowest bid, within the requirement of this section, without opening the door to the same corrupt combinations and furnishing facilities for the same fraudulent practices which it was the purpose of this provision to prevent. Attorney General v. City of Detroit, 26 Mich. 263.”

This rule applied to patented articles should extend to any desirable article, although, from the course of business, its manufacturers may have the exclusive sale of it. It is not a question of who makes or sells it, but of quality. In this case the complainants seek to apply a new regulation, viz., that in all such cases the city must be satisfied with some other article alleged to be equally good. They not only did not comply with the specifications, by naming one of the kinds of brick specified, but bid upon a brick the name of which was not divulged, and they now ask relief upon the ground that such a bid should have been considered. Municipal improvements afford an opportunity for corruption and jobbery, and the public opinion that it is not uncommon may be justified. This is perhaps unavoidable, but, whether it is or not, we think the remedy is not that suggested, viz., to deprive the cities of the power to get what is desired, and compel them to take what is not wanted, or nothing. "We think the law is complied with, in the absence of actual fraud or corruption, when specifications are submitted to competitive biding, although some article is specified which, by reason of a patent or circumstances, is in the hands or under the control of a single dealer.

The decree will be reversed, and the bill dismissed, with costs.

Grant, C. J., Moore and Long, JJ., concurred. Montgomery, J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    HOWARD v. DICKIE.
    1. Slander — Privileged Communications — Church Conference.
    A statement by a member of a conference called for the election of church trustees, concerning the character of one of the nominees, in response to an inquiry as to why he opposed his election, when made in good faith and without malice, is privileged.
    2. Same — Malice—Evidence.
    The fact that the person making the statement had previously notified the pastor that he should oppose the election of the person against whom the statement was directed has no tendency to show malice.
    3. Same.
    The falsity of a privileged statement is no evidence of malice, unless accompanied by proof that its author knew it to be untrue.
    Error to Calhoun; Smith, J.
    Submitted January 26, 1899.
    Decided May 23, 1899.
    Case by Henry Howard against Samuel Dickie for slander. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      T. E. Barkworth, for appellant.

      Parkinson & Campbell, for appellee.
   Montgomery, J.

This is an action for verbal slander. The circuit judge, at the close of the plaintiff’s case, directed a verdict for the defendant, and plaintiff brings error. The plaintiff and defendant were trustees of the Methodist Episcopal Church of Albion. A quarterly conference was called for the purpose of electing trustees for the ensuing year. The defendant was an official member of such conference, and entitled to a vote. The trustees were, in accordance with the church discipline, nominated by the pastor.. Among the names proposed was that of the plaintiff. The defendant thereupon moved that the name of F. W. Freese be substituted for that of plaintiff. A member of the board arose, and asked defendant for his reason for making the motion. The testimony is not entirely agreed as to what defendant said in response to the inquiry, but the disagreement is not, perhaps, substantial. If it were, the statement bearing most strongly against the plaintiff must be assumed to have been made. This is that the plaintiff was dishonest; that he was untruthful in his business dealings; that he was not only dishonest in his business, but that also in the church he failed to live up to the vows he took when he joined; that this was common talk; that he (defendant) frequently heard it on the street. Defendant also stated that he was sorry Howard was not there; that he would prefer to say whatever he .said in the presence of Mr. Howard. He also said his personal relations with Mr. Howard had always been pleasant. Another witness testified that defendant, on a previous occasion, had referred to a charge that plaintiff had not kept his word in regard to the purchase of the college farm; that he had refused to carry out a verbal contract for the purchase of the farm.

The plaintiff was called as a witness in his own behalf, and testified that he had not been guilty of dishonesty and deceit in his business dealings. The circuit judge was of the opinion that the occasion was privileged, that there was no proof of express malice, and that, therefore, the plaintiff was not entitled to recover, The ruling is challenged on both grounds. It is urged that the occasion was not privileged, for the reason that, if the defendant believed that the plaintiff was wanting in integrity, or that he failed to live up to his vows as a member of the church, it was defendant’s duty to take steps to expel plaintiff from the church, rather than to attempt to prevent his election to an office in the church. We cannot assent to his view. The defendant was called on to vote for or against the plaintiff, and it was certainly his duty, or at least his privilege, to make known, in response to an inquiry from another member of the conference, any facts within his knowledge which bore upon the question of plaintiff’s fitness for the place; and if this was done without malice, and in good faith, we have no doubt it was' privileged. O’Donaghue v. M’Govern, 23 Wend. 26; Dial v. Holter, 6 Ohio St. 228; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rep. 698); Kirkpatrick v. Eagle Lodge, 26 Kan. 384 (40 Am. Rep. 316); Howard v. Thompson, 1 Am. Lead. Cas. 167, note.

The question whether there is any evidence justifying an inference of malice is more difficult of determination. The rule is well settled that, when it appears that the occasion is privileged, the plaintiff has the burden of proving actual malice. The rule is stated in a note to Howard v. Thompson, 1 Am. Lead. Cas. 167:

“The showing of a privileged occasion prima facie removes the quality of malice, and puts upon the plaintiff a necessity of showing express or actual malice; and, if this be proved, the defense entirely fails. And this express proof of malice appears to consist in all cases in showing mala fides in the defendant, — that is, that the occasion was made use of colorably, as a pretext for wantonly injuring the plaintiff; and this express malice, being matter of fact and motive, is, upon sufficient evidence, a question for. the jury. The fact that the words were consistent with malice is not enough; they must be inconsistent with bona fides.”

We have held that malice may be inferred from circumstances under which the publication takes place in some cases, as that the slander was uttered in the presence of third persons, when no necessity existed for so public an accusation. Garn v. Lockard, 108 Mich. 196. So, too, if it be shown that the alleged slanderous statement was known to be untrue, this is sufficient proof of malice. Harrison v. Howe, 109 Mich. 476. But in this case there is no evidence of actual malice unless it be held that the. evidence tending to shovv that the charges made were ill founded is sufficient for that purpose. There was nothing in the manner of the defendant on the occasion in question to indicate ill will towards the plaintiff; on the contrary, the evidence negatives this. No previous utterances of defendant tend to show malice. True, it appeared that the defendant had previously notified the pastor that he should oppose the re-election of the plaintiff as a member of the board of trustees, but this does not tend to show malice. If he had the right to oppose plaintiff’s re-election, he had the right to give notice of his intended action. The case, then, must turn upon the question whether malice was made out by proof that the charges made were not true in fact, without additional evidence that they were known by the defendant to be untrue. If the privilege is to prove of actual value to the defendant, it would seem that it is quite unsafe to say that evidence that the statements made are untrue in fact establishes malice. ■ The truth of the words may always constitute a defense. To remove privilege by evidence of the untruth of the words spoken would therefore leave one acting under a qualified privilege in practically no better attitude than one who .can plead no such privilege. This question was before the court of queen’s bench in Fountain v. Boodle, 3 Q. B. 5. It was said by Patteson, J., “Falsehood in fact is no proof of malice, unless the proof involves knowledge of the truth.” In Somerville v. Hawkins, 10 C. B. 583, it was said that the supposition that defendant believed the charge is always to be made when the question is whether a communication is privileged or not. In Harris v. Thompson, 13 C. B. 333, it was said by Williams, J., citing Fountain v. Boodle: “The mere circumstance of the statement being false will not suffice to show malice, unless there is some evidence to show that the defendant knew it to be false.”

The direction of the learned circuit judge was right. The judgment will be affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    DEFFENBAUGH v. JACKSON PAPER MANUFACTURING CO.
    1. Principal and Agent — Authority of Superintendent — Contract of Employment — Compensation from Profits.
    The superintendent of a manufacturing company is not, by virtue of his authority as a general agent, empowered to contract with an employé for an interest in the principal’s business or its profits.
    2. Same — Ratification—Evidence.
    Where the superintendent of a manufacturing company makes an unauthorized contract to compensate an employé with an interest in the profits of the business in addition to a specified salary, the fact that the books of account, kept under the superintendent’s direction, show payments to the employé in excess of his salary, has no tendency to show a ratification by the company, in the absence of evidence that it was brought home to the company that the excess was paid as commissions
    Error to Jackson; Chester, J., presiding.
    Submitted January 27, 1899.
    Decided May 23, 1899.

      Assumpsit by George B. Deffenbaugh against the Jackson Paper Manufacturing Company on a contract of employment. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff sued defendant upon a contract of employment, set forth in the declaration as follows: That he was employed as the mechanical superintendent of the defendant’s works, in consideration of the yearly salary of $1,200, and the further consideration of 10 per cent, of the yearly net profits of defendant’s business in excess of $5,000. The employment was alleged to be for one year from February 1, 1895. The net profits are claimed to be $9,758.32. Plaintiff recovered verdict and judgment for $582.30.
    In the latter part of December, 1894, one Charles A. Jackson entered'into negotiations with the managing director of the defendant for employment as superintendent. Jackson and plaintiff had been employed in a similar mill together in Monroe for some years. At the request of Jackson, plaintiff came to the city of Jackson, and looked over the works and books with him. Plaintiff’s agreement was made through Mr. Jackson. Plaintiff made two trips to Jackson, and claims that the final arrangement was made about the very last of December or first of January, but the precise date is not given. Plaintiff had no talk with any officer of the company about his employment, and had no letter or other writing to show his contract. In his testimony he stated the contract to be that he was to have $1,200 a year, and was “to receive 25 per cent, of 40 per cent, of all profits over and above $5,000.” The contract was to commence the 1st of the February following. Mr. Jackson was at the same time negotiating employment for himself, and desired to secure the services of his brother, Gale Jackson, and the plaintiff. In this he was successful, and his brother was employed as bookkeeper. Mr. Potter, the general agent of the company, conducted the negotiations with Charles Jackson. Mr. Jackson was not then in the employ of the company, and there is nothing to indicate that he had then received any authority to make contracts of employment, or to act for it in any way. Charles Jackson undoubtedly agreed with them for a division of the 40 per cent, profits he was to receive. Jackson continued to work for the company for about a year, and suddenly disappeared, leaving his account overdrawn $1,100. His whereabouts were for some time unknown. The defendant tried to find him, but learned nothing till news of his death in New Orleans was received.
    The annual meeting of the company was held on January 18, 1895. The record shows the following:
    “Mr. Potter reported that he had arranged with Charles Jackson, subject to the approval of the board, to take the superintendency of the mill, at a salary of $1,500. He was to associate with him Gale Jackson, at $700 per annum, and George Deffenbaugh, as the master mechanic, at $1,200 per annum; Mr. Charles Jackson to have a further compensation of 40 per cent, of the net profits of the year in excess of $5,000. In pursuance of the above, Mr. Charles Jackson was appointed superintendent from February 1, 1895, to be continued so long as his services were satisfactory to the board.”
    This is the only written evidence of the arrangement.
    Defendant, at the conclusion of the evidence, requested the court to direct a verdict for it. This was refused, and the case submitted to the jury upon the theory of an original contract as alleged, and the jury rendered a verdict as stated.

      Pringle & Hewett, for appellant.

      Blair, Smith & Townsend, for appellee.
   Grant, C. J.

(after stating the facts). 1. Plaintiff relies upon the authority of Mr. Charles Jackson, as the agent of defendant, to make the contract declared upon. If Jackson possessed the power to make it, it is by virtue of his authority as a general agent, or special authority conferred upon him by the proper officers of the company. The contract was not within the scope of a general agent to make. Such an agent is not clothed, by virtue of his agency, with power to contract with an employé for an interest in his principal’s business, or an interest in the profits thereof. See Gore v. Assurance Co., 119 Mich. 136.

2. No special authority was shown. Plaintiff dealt with Jackson alone. He did so at his own risk. He cannot plead ignorance of the law. It was his duty to inquire into the scope of Jackson’s agency. If he chose to trust implicitly to his particular friend, Jackson, the defendant is not responsible or liable for it. Only when the contract had been' reported by Jackson to the company, and approved and ratified by its proper officers, could it be made liable. Potter, the managing director, concluded the negotiations so far as lay in his power. He testified that he made the arrangements with Jackson for $1,500, and 40 per cent, of the profits above $5,000, and that Jackson should bring plaintiff, at a salary of $1,200 a year, and his brother, at $700 a year, subject to the approval of the directors. His testimony stands undisputed. The records of the directors’ meeting, made shortly after, confirm it. There is no competent evidence of any other contract.

3. There is no tangible evidence to show ratification. The alleged contract was never brought to the attention of the directors, nor was it brought to the attention of any officer of the company until very nearly the close of the year, and probably not until afterwards. The boobs of account were kept by Gale Jackson, under the direction of his brother Charles. . There is no evidence that any other officer or employé directed the keeping of the accounts. Plaintiff received money from the defendant in excess of his salary to the amount of $258. This was charged against him in his account. This did not tend to show any knowledge on the part of any officer of the company of this alleged agreement. It is no uncommon thing for such employes to receive money in advance of their salaries. No officer of the company was informed that this was for commission. Furthermore, the thing having been done under the direction of Charles Jackson, and he, his brother, and plaintiff being interested, by their own private agreement, in this 40 per cent, of the profits, there would seem to be no justice or propriety in holding that these charges were evidence of ratification, or formed any basis for the application of the doctrine of estoppel.

It is also urged that, in several interviews between plaintiff and Mr. Potter, Potter made no disclaimer of liability for this commission. These interviews were had more than a year after the alleged contract was made, and after the year for which suit is brought had expired. This cannot be held evidence of a ratification of the contract. Mr. Potter had no authority to make a contract with the plaintiff or with Jackson for a portion of the profits. If he had no authority to make it, he certainly would have no authority to bind the company by failure to deny it, or even by admitting it. The only contract made by defendant with plaintiff was the one reported by Mr. Potter to' the board of directors, and ratified by it. There is no tangible evidence that any other was made, contemplated, or ratified.

Plaintiff may have honestly understood that the defendant agreed to pay him his share of this commission, but there is nothing to show that defendant so understood it, or had any reason for so doing. It is very evident that Jackson, his brother, and plaintiff had a private agreement in regard to this commission, ánd the division of it among themselves. Gale Jackson was a party to it. He was plaintiff’s witness, and he testified: “My arrangement was a private arrangement between my brother and myself. I understood Deffenbaugh’s to be the same. I never made any contract with any one else but my brother Charles.” Gale Jackson’s account was also overdrawn. Would this overpayment be evidence of knowledge that Gale was to receive a commission, and bind the company to pay it ? -

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    SUPERINTENDENTS OF POOR OF KALKASKA CO. v. SUPERINTENDENTS OF POOR OF GRAND TRAVERSE CO.
    Indigents — Change of Settlement — Liability of Counties.
    Under the statute providing for the support of the poor by the public (1 How. Stat. § 1755 et seq.), where a family remove from a county in which they have received aid as indigent persons, and make their home in another county, the latter, and not the former, county is chargeable with their subsequent support, unless they were removed or enticed from their former home with a view to casting their support on another county.
    Case made from Grand Traverse; Corbett, J.
    Submitted February 21, 1899.
    Decided May 28, 1899.

      Assumpsit by the superintendents of the poor of Kalkaska county against the superintendents of the poor of Grand Traverse county to recover an amount paid for the support of an indigent family. There was a judgment for defendant and plaintiff assigns error.
    Affirmed.

      J. L. Boyd, Prosecuting Attorney (W. D. Totten and O. M. Phelps, of counsel), for appellant.

      John J. Tweddle, Prosecuting Attorney, for appellee.
   Montgomery, J.

The facts of the case agreed upon in the court below, so far as they are essential to an understanding of the legal questions involved, are as follows : The action is brought to recover money claimed to be due the county of Kalkaska for money paid out by said county for aid and support of poor persons claimed to have been residents of the county of Grand Traverse. One Burt Hurlbert was, with his family, a resident of the said county of Grand Traverse for some five years up to about the 21st of September, 1895. The said Hurlbert lived upon a small farm of some 10 acres near the village of Williamsburg, in said Grand Traverse county, for about five years, and until the said 31st day of September, 1895. In May of the year 1895 the said Hurlbert made application to the supervisor of the township of Whitewater for aid as a poor and indigent person, and received aid from such township as a poor person or person in indigent circumstances. The said township of Whitewater paid at the rate of $3 per week for the support of said Hurlbert and his family from some time in May, 1895, to about the 17th of July, 1895. Said Hurlbert exchanged his little property in the said county of Grand Traverse for a house and lot in the village of Kalkaska, and the said family came to the said village of Kalkaska to reside on the 31st day of September, 1895. They made application to the superintendents of the poor and the supervisor of Kalkaska township for help or aid as poor persons. Such application was made by said Hurlbert about the 30th day of the month of December, 1895, and on the 31st day of December the said supervisor furnished provisions to the said Hurlbert to the extent of $10.40, and continued to furnish provisions and necessaries from that time until about the 4th day of May, 1896, and furnished in all to the extent of $35.88. Soon after the said provisions and goods were furnished by the said county of Kalkaska to the said Hurlbert and family, the superintendents of the poor for said county caused a notice to be served on the said superintendents of the poor of Grand Traverse county, stating the amount so furnished to the said family, and requesting the said superintendents to come and care foi the said family, or to remove them to the said county of Grand Traverse, and to repay to the said county of Kalkaska all monej'- paid, laid out, and expended for the said family; and the said superintendents also notified the said superintendents of the poor of Grand Traverse county of the improper removal of the said Hurlbert and family to Kalkaska county. On receipt of such notice by the said superintendents of the poor of Grand Traverse county, the said superintendents sent to the said superintendents of the poor of the said Kalkaska county a notice denying all liability to the said county for said money so laid out, paid, and expended by said county in the care and support of the said Hurlbert and family, whereupon this suit to recover the amount was commenced against the said Grand Traverse county. The distinction between township and county poor exists in both the said counties of Kalkaska and Grand Traverse. Each township in said counties supports its own poor. The circuit judge held that the plaintiff was not entitled to recover, and from that determination an appeal is taken to this court.

Section 1755, 1 How. Stat., provides that poor persons unable to support themselves shall be maintained by the county in which they may be. Section 1786 provides that, in those counties in which the distinction between township and county poor shall not be abolished by the board of supervisors, the poor having a settlement in any township in such counties shall be supported at the expense of such township, and the poor not having such settlement shall be supported by the county in which they may he, as thereinbefore provided. The succeeding section prescribes what shall constitute a settlement. These sections very clearly cast the burden of maintaining paupers upon the county in which they may be, except as to poor having gained a settlement in counties in which the distinction between county and township poor has not been abrogated, in which nase the pauper is to be supported at the expense of the township in the county in which he has gained a settlement. Unless, therefore, there is found in some provisions of the statute authority for charging this expense to the county of earlier residence, it is clear that this action cannot be maintained. The only sections having' direct bearing on the question are sections 1767, 1768, and 1769. The first of these sections makes it an offense to remove or entice any poor person into another county with the intent to make such county chargeable with his support. The two succeeding sections provide a remedy by the county which has been compelled, to maintain the person so brought, removed, or enticed. Nowhere is there any provision which attempts to prohibit poor people from remaining in any particular county, or to provide for a liability on the part of one c'ounty for the support of such poor person who has voluntarily sought another abode. There is such a provision as between different townships of the same county.

The judgment is affirmed.

The other Justices concurred.


text:
    ANTI-KALSOMINE CO. v. KENT CIRCUIT JUDGE.
    Discovery —Production op Correspondence — Unreasonable Search — Constitutional Law.
    An order requiring a party to a suit to produce for examination by the adverse party all correspondence “which may contain evidence relating to the matters at issue” does not extend to confidential communications which can be of no benefit to the party seeking the production, so as to render it repugnant to the fourth amendment to the Federal Constitution, and to section 26 of article 6 of the State Constitution, prohibiting unreasonable searches and seizures.

      Mandamus by the Anti-Kalsomine Company to compel Allen C. Adsit, circuit judge of Kent county, to vacate an order requiring relator to produce certain records and correspondence for inspection.
    Submitted April 4, 1899.
    Writ denied May 23, 1899.

      T. J. O’Brien and Fletcher & Wanty, for relator.

      Hyde, Earle & Thornton, for respondent.
   Montgomery, J.

This is an application for man- damns to require the respondent to vacate an order directing the relator to produce for inspection of its adversary in a pending suit its books and correspondence for a certain period. The order complained of was made in the case of Church v. Anti-Kalsomine Co. See 119 Mich. 437. The nature of the action is shown in the opinion of this court in that case when presented to us on demurrer. 118 Mich. 219. After an issue of fact was joined, the plaintiff in the case asked for an order requiring the relator to produce for the inspection of a competent bookkeeper all the books of account, records, files, and correspondence in relation to the business covered by the contract between the parties, including the books of account, records, files, and correspondence of the Diamond Wall-Finish Company, referred to in the declaration, in its possession or control, or in the possession or control of its officers, agents, and employés, or in the possession or control of the officers, agents, and employés of the Diamond Wall-Finish Company. It appeared by the answer to the order to show cause filed by the relator in the circuit court that the relator had given the plaintiff, Mr. Church, and an accountant employed by him, free áccess to its hooks of account up to the 17th of December, and had produced at his request any item of correspondence especially requested by him; that at that date the accountant was informed that it would not be convenient to permit him to work in the office the balance of the current year, as the clearing up of the business of the year would render it necessary for the employés of the company to have the exclusive use of the office; but it was at the same time stated that soon after the first of the year the company would again furnish facilities for the prosecution of the investigation. The application was made for the order complained of on the 29th of December. Among the provisions of the order are the following:

“That the said Oscar F. Powell, the bookkeeper selected by plaintiff for that purpose, and who has heretofore been permitted by defendant to examine for plaintiff a portion of the books of defendant mentioned in said petition, is hereby authorized to list, examine, and take copies of and memoranda from the books, records, files, and correspondence of defendant mentioned in said petition, including the books, records, files, and correspondence of the Diamond Wall-Finish Company, also mentioned in said petition, as he and the said plaintiff may be advised. That said defendant, its officers and office employés, furnish to the said Oscar F. Powell sueh books, records, files, and correspondence of defendant and the Diamond Wall-Finish Company in its possession or control, or in the possession or control of its officers, agents, and employés, or in the possession or control of the officers, agents, and employés of the Diamond Wall-Finish Company, as he may from time to time call for, which may contain evidence relating to the matters at issue in this cause. That it shall not be necessary for the said Oscar F. Powell in such demand or requirement to specify any particular letter or document, but it shall be sufficient for him to designate generally the class of papers and documents required by him. For example, it shall be sufficient for him to call for all the correspondence and reports by and between said defendant, its officers and office employés, and traveling salesmen in its employ, or heretofore in its employ, and the files of defendant in relation thereto.”

The relator complains that this order authorizes an unreasonable search of relator’s property, and violates the fourth amendment of the Constitution of the United States, and section 26, art. 6, of the Constitution of this State. The counsel for respondent contend that the order of the circuit judge was fully authorized, and cite the case of Eddy v. Bay Circuit Judge, 114 Mich. 668. The case is ruled by the case cited, unless a distinction is taken between the books and papers of a corporation and its- correspondence. The petition sets out that resort to the files and correspondence is necessary to an understanding of the book entries. It is urged that such an order, directed to an individual, might result in the production of confidential communications, and that, as applied to a corporation, it may result in the production and inspection of confidential communications of no benefit to the party seeking the production. We do not think the order in this case can be construed so broadly. It requires the production of books, papers, and correspondence “which may contain evidence relating to the matters at issue in this case.” We think the order was within the power of the circuit judge. See Germania Fire Ins. Co. v. Newaygo Circuit Judge, 41 Mich. 258; Petrie v. Muskegon Circuit Judge, 90 Mich. 265.

The writ will be denied.

The other Justices concurred.


author: Hooker, J.

text:
    SMEDLEY v. KIRBY.
    1. Municipal Corporations — Casting Vote op Mayor — Interest.
    A mayor who employed an attorney to contest an attempted diversion of the public funds by the city council, but incurred no personal liability to compensate the attorney, is not precluded, on the ground of interest, from casting an affirmative deciding vote, where, upon a motion to pay the attorney fees, the vote of the aldermen results in a tie.
    2. Same — Debts—Issuance op Warrant — Mandamus.

      Mandamus to compel a city clerk to issue a warrant in favor of a creditor whose claim has been duly allowed by the council will not be refused because the petition fails to allege that there is money on hand sufficient to pay the same, where the claim of lack of funds has at no time been advanced by the clerk as a reason for withholding the warrant, and it does not in fact appear that the funds are insufficient.

      Certiorari to Ottawa; Padgham, J.
    Submitted March 14, 1899.
    Decided May 23, 1899.

      Mandamus by Charles O. Smedley to compel Thomas E. Kirby, clerk of the city of Grand Haven, to draw a warrant on the city treasurer for an amount due relator for legal services. From an order denying the writ, relator brings certiorari.

    Reversed.

      Smedley & Corwin (J. J. Danhof, of counsel), for relator.

      Charles E. Soule (Walter I. Lillie, of counsel), for respondent.
   Hooker, J.

In June, 1898, the common council of the city of Grand Haven passed' a resolution to transfer from the contingent fund of said city in the hands of its treasurer, and to divide between and add to several other city funds, the sum of $7,000. The mayor, Baar, attempted to veto the resolution, but the clerk, Kirby, refused to file it, and the mayor employed Smedley to institute mandamus proceedings to compel it. This was done, and they were successful. The case reached this court, and will be found reported in Baar v. Kirby, 118 Mich. 392. A similar proceeding was commenced against the council, but it was not brought to this court. The employment of Smedley by the mayor was not authorized by the council, but it is claimed that the mayor had authority to employ counsel, inasmuch as the city attorney was in sympathy with the resolution vetoed, and took the side of the council and clerk in the matter.

In November, 1898, Smedley presented a bill against the city for $349.50 for his services in the two cases mentioned, and another bill against the clerk for $37.80, the costs of this court taxed in the case of Baar v. Kirby. These claims are said not to have been'verified as required by section 20, chap. 8, Act No. 215, Pub. Acts 1895, but the record indicates that they were. They were referred to the finance committee of the council, with the city attorney added, for examination and report. This committee reported at a subsequent meeting, in substance, that:

1. The city had not employed Smedley, and was under no obligation to pay his bill.

2. A reasonable sum should be allowed the mayor to pay his (the mayor’s) attorney fees.

3. They recommended that the mayor be allowed $37.80' to pay the bill of costs against the clerk, and $50 for all other legal expenses in his mandamus suits.

4. Nothing should be allowed to Smedley on his bills.

Alderman Yos moved to amend this by a resolution allowing $349.50 to the mayor, with which to pay his attorney fees in the case against Kirby. This motion was voted upon by the aldermen, and resulted in a tie. The mayor voted for it, and declared the motion carried. The same course was taken on the motion as amended.

Subsequently four members of the council commenced mandamus proceedings against the mayor to compel him to rescind his action in declaring the motions carried, and a few days later this application was filed by Smedley to compel the clerk to draw the warrant for $349.50. In the former, issues were framed and evidence was taken, while the latter was heard upon petition and answer. They were heard together, and the circuit judge makes return of the proceedings and final order in each. The return states as a reason for denying the writ in this case that the two cases were heard together, and the facts brought out in the Bishop Case were considered in disposing of this. In short, they seem to have been treated as one case, and, while the Bishop Case was not brought here by a separate writ, the matter is all before us." It is manifest that the meritorious question is the'same in both, viz., whether the mayor had a lawful right to decide the tie by his own vote. The circuit court found that he had a personal interest in the matter, and, if this is to be treated as a matter of fact, we cannot review it, any more than we could the finding of a jury. But the evidence is all returned, and it is proper for us to examine it, to ascertain whether it furnishes any opportunity for dispute upon the question, — dn other words, whether the judge has correctly applied the law to undisputed facts.

Counsel for the relator urge that the council was attempting an unlawful thing; that they intended to divert the public funds from proper uses, under resolutions which had passed the council, but had been vetoed; that the city-clerk and attorney were aiding the council, and that it was within the proper sphere of the mayor to prevent it; and, therefore, that he had authority to employ counsel to aid him in necessary litigation on behalf of the city. This is substantially the broad proposition that, when a mayor thinks the council is taking illegal action, he has authority to bind the city for expenses and costs of necessary proceedings to try the question, or, at least, that he may institute proceedings, and that the test of his authority is the result. We need not discuss this question, as the case can be disposed of upon another ground. As said in the case of Barnert v. Mayor, etc., of Paterson, 48 N. J. Law, 395: “If this ground of recovery be regarded as untenable or doubtful, I think the action of the city authorities has been such as to raise this into an express promise to pay that the right of a corporation to indemnify an officer for losses and expenses incurred in the discharge of an official duty in a matter in which the corporation is interested is undoubted, and this power has generally been found sufficient to afford protection against flagrantly illegal action. One-half of the aldermen were in favor of granting it in this case, and, if the mayor was entitled to vote upon the question, the city is already bound to render compensation. This must depend upon the nature of the mayor’s relation to the matter. It is apparent that the employment of relator was on behalf of the city. The mayor expressly avoided a personal liability. This he had a right to do, and, while he could not pledge the credit of the city, it was competent for him to make an arrangement whereby the relator assumed the risk of losing his services if the authorities should not assume the burden at some subsequent time. The charter provides (chapter 8, §5) that “no alderman shall vote upon any question in which he shall have a direct personal interest.” Another provision (chapter 8, § 16) is, “No member of the council * * * shall be interested, directly or indirectly, in the profits of any contract * * * to be performed for the corporation.” This indicates that a pecuniary interest was intended. Anderson defines “interest” as “such relation to the matter in issue as creates a liability to pecuniary gain or loss from the event of the suit.” See, also, 11 Am. & Eng. Enc. Law, 422; Taylor v. Commissioners of Highways, 88 Ill. 526.

We are of the opinion that the vote was authorized by the charter, under the admitted facts. It is urged that the circuit court has determined otherwise upon the question of fact; but we gather from the order and the return that the matter turned upon the legal question, and that it was not found that the mayor had incurred a pecuniary obligation, but that possibly relator might claim so, and that a legal controversy might arise, which the mayor would be brought to the expense of defending to escape pecuniary loss. But there is nothing to show a «probability of this. On the contrary, relator does not claim it.

Counsel urge further that the respondent should not be required to issue the warrant, for the further reason that there is no resolution authorizing it. This is upon the theory that the order of the court in Bishop against Baar, holding the mayor’s vote illegal, has not been appealed from, and therefore nullifies the resolution adopted, and, further, that this application was for an order to compel the issue of a warrant payable to the relator, while no claim has been allowed in his favor, but only in favor of Baar, the mayor. These are technical. As we have said, the cases were heard together, and, for practical purposes, merged, at the circuit. The mei’its of both are here, and counsel for both parties have referred to the proceedings in the Bishop Case. The appeal has brought up the merits of the whole controversy. The respondent does not appear to have refused to issue a warrant to the relator on the ground that the mayor was entitled to it, .or to have offered to issue one payable to the mayor. The relator has signified a willingness to accept such a one. Counsel for the respondent, in their brief, treat the interest of the mayor in the claim as the main question, as it is.

Again, it is said there is nothing in the petition to show that there is money in the fund to pay the order. Of this it is sufficient to say that, if the act forbids the drawing of a warrant in the absence of funds, nothing indicates a refusal upon such ground, and we are not advised that such fund is wanting.

We are satisfied that the relator was entitled to have a warrant for the amount claimed, payable to himself or the mayor; and an order will be entered reversing the order of the circuit court, and directing the writ to issue accordingly, with costs of both courts.

The other Justices concurred.


author: Long, J.

text:
    DE LANO v. DOYLE.
    Municipal Corporations — Scavengers—Ordinances—Repeal.
    An ordinance empowering the mayor of a city to license suitable persons as scavengers, and providing, under a penalty for violations, for the carrying on of the business in a speci fled way, is repealed by a subsequent ordinance covering the same subject-matter, and embracing new pirovisions placing the collection of garbage under the control of the local board of health, and providing that no license to gather garbage shall be issued by the mayor except on recommendation of such board.

      Mandamus by Will De Lano, health officer of the city of Grand Rapids, to compel Emanuel J. Doyle, judge of the police court of said city, to issue a warrant.
    Submitted March 14, 1899.
    Writ denied May 23, 1899.

      Henry J. Felker (Edwin F. Uhl, William Wisner Taylor, and Harvey Joslin, of counsel), for relator.
    G. H. Albers, for respondent.
   Long, J.

Relator files his petition for a mandamus to compel the respondent, as judge of the police court, to entertain a complaint and issue his warrant for the arrest of one John Sessink for a violation of an ordinance of the city of Grand Rapids entitled “An ordinance relative to scavengers.” This ordinance was passed in 1871, and has been amended from time to time. It appears that the relator, on the 16th day of February, 1899, made due complaint before the respondent, as judge of the police court, on oath,- that one John Sessink, on the 15th day of February, 1899, and for 30 days prior thereto, had been following the business and occupation of scavenger in said city, without having first procured a license therefor from the mayor, contrary to the provisions of section 1 of the above ordinance; that the said police judge refused to take such complaint or to issue said-warrant. Upon the filing of the petition in this court, an order "to show cause was issued, and the respondent has made his return thereto. The answer admits the facts stated in the petition, but avers that on July 18, 1898, another ordinance was passed, repealing the ordinance which the relator sought to enforce.

The ordinance of 1871, as amended, provides:

“Section 1. No person shall follow the business or occupation of a scavenger in the city of Grand Rapids without first procuring a license therefor from the mayor of said city.
“Sec. 2. The mayor is hereby authorized to license one or more proper persons to act as scavenger, upon such person executing and filing in the office of the city clerk a bond, with sufficient sureties, conditioned for the faithful performance of the duties of his office and the faithful observance of the provisions of this ordinance.”

The other sections provide that the scavenger, under the direction of the mayor, marshal, or a member of the board of health, shall have the power to enter upon any premises between sunrise and sunset, and examine any vault, sink, privy, or private drain, and that when such shall need cleaning out, altering, relaying, or repairing, after due notice to the owner or occupant, the scavenger may clean them out, etc. The scavenger is prohibited from removing the contents of any vault, sink, privy, etc., otherwise than in boxes, etc., made tight and closely covered, and from burying the same in ground within the city limits, etc., and from disposing of the same to any person to be used for manure in any garden, etc., within the city limits. Section 9 of the ordinance provides that any person violating the provisions of the ordinance shall be punished by a fine of not less than $1 nor more than $50, and costs of prosecution, or by imprisonment in the county jail, etc., for a period of not less than 2 days nor more than 60 days.

The complaint made under this ordinance was that “John Sessink did follow the business and occupation of a scavenger without having first procured a license therefor from the mayor of said city of Grand Rapids,” etc.

The ordinance passed July 18,, 1898, is entitled:

“An ordinance providing for the regulation, collection, removal, and cremation of garbage, offal, dead animals, and other refuse matter, and for the regulation of the crematory, in the city of Grand Rapids.”

By the first section of this ordinance the board of health of the city is given control and management of the garbage burner or crematory owned by the city, with power to employ the necessary help and fix the salaries of employes. Section 2 makes it unlawful for any person to place any dead animal or -garbage in any lane, alley, street, or other public place within the city, or on any private property, unless inclosed in a water-tight tank, kept in some place accessible to the collectors of garbage. Section 4 authorizes the board of health to enter into a contract with any suitable person to furnish tanks and to gather the garbage, with power also to make regulations as to the manner in which the garbage shall be gathered. It also provides that the person thus entering into the contract for the collection and removal of the garbage shall, upon the recommendation of the board of health, receive a license for that purpose, issued by the mayor of the city; and it further provides that:

“No license shall be issued to any other person, firm, or corporation for the gathering of such garbage; and such person so licensed shall give a bond to the city of Grand Sapids, with sufficient sureties and in such amount as may be required by said board of health. The condition of such bond shall be that said person so licensed shall in all things carry out the provisions of the contract thus entered into between himself and the board of health, acting for said city, and such rules and regulations as may from time to time be made by said board of health.”

Section 5 provides that the scavenger thus licensed shall receive no compensation from the city, but shall be permitted to make arrangements, with citizens for the removal of the garbage, etc. Section 6 provides for the manner of the removal of the garbage to the crematory. Section 7 provides the penalty for violations of the ordinance. Section 8 provides as follows: “Any ordinance or part of ordinance conflicting with the provisions of this ordinance be and the same is hereby repealed, so far as the same affects this ordinance.”

After this ordinance was passed, a contract was entered into by the board of health 'of the city with one Charles E. Herrington, as provided by the ordinance, for the removal and destruction of the garbage of the city. This agreement provides that Herrington shall not sublet the contract to any person or persons without permission of the board of health first obtained in writing. The bond was given by Mr. Herrington, as provided by the ordinance, and signed by the mayor, representing the city. The ordinance grants to the person contracting the right to name the- persons who shall gather the garbage in the city, and the mayor can issue licenses only to such persons so named.

It is apparent that the ordinance of 1898 was intended to entirely change the manner of gathering the garbage in the city. Under that ordinance the mayor cannot issue a license, except upon the recommendation of the board of health. The board of health is powerless to recommend the issuing of any other license, by reason of the contract made with Herrington, granting him the exclusive right to gather garbage. The ordinance of 1871 must therefore be treated as repealed. The rule is well settled that, where there are two acts upon the same subject, effect must be given to both, if possible, but if the two are repugnant, and the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it is intended as a substitute for the first, it will operate as a repeal of that act. U. S. v. Tynen, 11 Wall. 92. We think the respondent was not in error in holding that the ordinance of 1871 was repealed by the ordinance of 1898, and that no complaint can be entertained under the old ordinance.

The question of the validity of the ordinance of 1898 is not raised by counsel, and therefore not passed upon in the present case. We have dealt only with the question which the relator has seen fit to raise.

The writ must be denied.

The other Justices concurred.


author: Moore, J.

text:
    ARNDT v. BOURKE.
    1. Pleading — Declaration—Amendment During Trial.
    The fact that defendant, who pleaded the general issue to a declaration for personal injuries, requested plaintiff, at the commencement of the trial, to make at that time any amendments to the declaration that were contemplated, and that, notwithstanding such requést, plaintiff first asked permission to amend after nearly all the witnesses were sworn, does not make the allowance of the amendment erroneous, where no claim was made by defendant that the amendment was an improper one, or that its allowance at such time entitled him to a continuance.
    2. Personal Injuries — Defective Stairway — Evidence.
    Testimony by various persons as to the, condition at different times of a stairway down which the plaintiff fell to her injury is competent, although extending from the day of the accident to a period 10 or 12 days thereafter, .where the testimony of each witness supplements that of the others, and tends to show a continuance of the defective condition.
    3. Same — Einancial Circumstances of Plaintiff, — Harmless Error.
    In an action for personal injuries, error, if any, in admitting evidence that plaintiff is without means, is harmless, where it was admitted solely in rebuttal of evidence that counsel were to have a share of any judgment recovered as their fee, and where the verdict shows that the jury did not consider it
    ■ in estimating the damages.
    Error to Wayne; Hosmer, J.
    Submitted April 5, 1899.
    Decided May 23, 1899.
    Case by Rosalie Arndt against Michael J. Bourke and others for personal injuries. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      De Forest Paine and Charles E. Hilton, for appellants.

      Sullivan & Mason (J. Emmet Sullivan, of counsel), for appellee.
   Moore, J.

This was an action on the case ror the recovery of damages for injuries received by the plaintiff from a fall on a stairway leading to the cellar of a building owned by the defendants, and occupied by the plaintiff, her husband and family, as their tenants. Plaintiff had a verdict for $1,000 in the court below. Defendants appeal. The defendants’ plea was the general issue.

On the 28th of May the trial commenced. Counsel for the plaintiff made an opening statement to the jury of the facts he expected to prove on behalf of his client. A witness was sworn, when counsel for defendants objected to the proof being offered in evidence which counsel for plaintiff stated was plaintiff’s case, for the reason that it was not competent under the declaration, and proceeded to say wherein he thought the declaration was defective. The judge said, as counsel had not demurred to the declaration, he thought the declaration good, but, if it was thought not to be good, he would allow the plaintiff on the trial to amend it. Counsel for defendants replied, if it was to be amended, he would like it amended then, as he was there to try a particular case and no other. The judge directed the trial to proceed. Eight witnesses were sworn on the part of the plaintiff, and eleven on the part of the defendants. Nearly all of these witnesses had testified, when counsel for plaintiff said he desired to amend his declaration. Counsel for defendants objected to the amendment. He was asked by the court if he was surprised. He said he was as to the amendment then proposed. A colloquy then occurred between the court and counsel, indicating that no serious objection was made to the amendment, and it was allowed to be made. Counsel made no claim that he was not prepared to meet the issue as framed, but, on the contrary, offered proof which, if believed by the jury, would be a complete defense' to the case made by the plaintiff. No request was made that the case be continued to allow counsel to procure other proof. It is now said the court erred in allowing the amendment to be made.

If a declaration is defective, the question of its sufficiency should be raised by demurrer, so that the defect can be remedied before the parties have been to- the expense of getting ready for the trial. Courts do not look with favor upon the practice of waiting until the trial has commenced before questioning the sufficiency of the declaration. Where this is done, the defect must very clearly appear before the objection to taking testimony will be sustained. Jennison v. Haire, 29 Mich. 210; Van Middlesworth v. Van Middlesworth, 32 Mich. 183; Sutton v. Van Akin, 51 Mich. 463. We do not feel at all certain that the original declaration was not broad enough to allow the proof offered by the plaintiff to be received, but, under the record, we do not deem it necessary to pass upon that question. The legislature has provided for the amendment of pleadings so as to allow the trial upon the merits to proceed without unnecessary delay. 3 Comp. Laws 1897, § 10268, and the many cases cited in the note thereto. The amendment allowed was a proper one. It is apparent counsel were advised, at the commencement of the trial, it would be permitted during the trial. Had they claimed they were not prepared to meet the issue as framed, the court undoubtedly, upon a proper showing, would not have compelled the trial to proceed. The action of the court in permitting the amendment was not error.

It was the claim of plaintiff that defendants undertook to put in repair a stairway leading to the basement in the building occupied by herself and her husband as tenants of the defendants, and that, after the stairway was-repaired,. she was assured by one of the defendants, who acted as the agent for all, that the stairway was entirely safé; but that it was constructed of such improper material that when she used it, some months thereafter, one of the steps broke through, resulting in her receiving serious injuries. Some of the assignments of error relate to the admission of testimony as to the condition of these stairs at times varying from the same ‘day the accident occurred until 10 or 12 days thereafter, upon the ground that too much time had elapsed to make the testimony competent. These stairs were in a house used by but few people. We think the testimony, one witness supplementing the testimony of the others, was all properly admitted. The testimony of the successive witnesses fairly warranted the inference that the defective conditions continued until the latest time mentioned.by any of the witnesses.

It was the claim of the plaintiff that, 16 years prior to the accident, she had a hernia, caused by a childbirth, from which she did not suffer until she fell upon the stairs, when the hernia grew rapidly, and at the time of the trial it was very large. . It was her claim the enlargement of the hernia was caused by the. injury. Dr. McGraw was called as a witness by defendants to show that the enlargement might have been caused by subsequent childbirths (it having been shown Mrs. Arndt was the mother of four children), and that it was a common experience for such hernias to increase in size with very stout women. Objection was made to á question put to him upon the cross-examination. Under the latitude allowed in a cross-examination, the question was not objectionable.

Counsel for defendants drew out, by cross-examination, from the plaintiff and her husband, that the attorneys for the plaintiff were to have a share of any judgment which might he recovered by the. plaintiff. After this testimony was drawn out, plaintiff was permitted to show that neither Mr. nor Mrs. Arndt had any property of their own. It is said this was error, as it was calculated to prejudice the jury in favor of the plaintiff against the defendants; counsel citing Chicago, etc., R. Co. v. Bayfield, 37 Mich. 214, and Hunn v. Railway Co., 78 Mich. 529 (7 L. R. A. 500). In each of those cases the suit was brought by the representative of the estate of the deceased, who received injuries resulting in his death. Proof in those cases was received to show the needy condition of the family of the deceased, and as bearing upon the question of damages,- and the court very properly said the proof was not competent for that purpose. In this case counsel for the defendants contended the claim of plaintiff was not an honest one, but was a speculative one, and, for the purpose of sustaining their contention, put in the proof that the plaintiff was to share the verdict withhef attorneys. To meet that contention, proof was introduced showing the poverty of the plaintiff and her husband, for the purpose of showing their inability to employ counsel in any other way than in the way they were employed. There is nothing in the record to show the testimony was used by counsel, court, or jury for any other purpose. In view of the amount of the verdict, it is clear the jury did not, because of it, enhance the damages of plaintiff, and, if its admission was error, we do not think it can be said to have been harmful error.

Counsel assign error upon the refusal of the court to give their requests to charge. Such of them as were proper to be given were fully and completely covered in the general charge.

The judgment is affirmed.

The other Justices concurred.


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    McKAY v. GARDNER.
    Adverse Possession — Sufficiency of Title.
    Where, on the death of the owner of premises, one of the heirs, -without objection from the others, takes possession under a claim of ownership, and holds the same adversely for the statutory period, a deed from him will vest a good title in the grantee.
    Error to Saginaw; Wilber, J.
    Submitted April 18, 1899.
    Decided May 23, 1899.

      Ejectment by McIntosh McKay against Edward Gardner and wife. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      John F. O’Keefe, for appellant.

      Lamson & Denfeld (F. Brucker, of counsel), for appellees.
   Moore, J.

Plaintiff brought ejectment to recover 4.52 acres of land, which he claims to own as part of lot 10 on the S. W. i of section 34, in township 11 N., range 4 E. Defendants claim the land is part of the W. \ of said section 34, and they also claim that, if it is not, they are the owners of it by adverse possession. The circuit judge directed a verdict in favor of defendants upon the ground that plaintiff had shown neither record title nor title by adverse, possession.

A reference to the government plat will simplify the situation. The plat was drawn from a survey made in 1822. It shows the land in dispute was a part of lot 10, and was not a part of lots 5 and 11, as platted by the government. In August, 1837, the government issued a patent to John McKenzie, of Saginaw county, Mich., of “the northeast part (number ten) of the southwest fractional quarter of section thirty-four.”

It was the claim of plaintiff that John McKenzie went into possession of this land shortly after he obtained his patent, and he and those representing him, either as tenant or heir, continued in possession of the disputed tract until within seven or eight years; that plaintiff succeeded to that title by a warranty deed from John McKenzie and his wife, of Genesee county, Mich., dated March 9, 1896. The last-named John McKenzie was the nephew of the John McKenzie named in the patent from the general government. It is the claim of plaintiff that John McKenzie, the uncle, died nearly 50 years ago, leaving neither father, mother, brother, nor sister; that John McKenzie, the nephew, furnished some money which was applied on the purchase of the land when it was bought, and that, after his uncle’s death, he, without objection upon the part of the other nephews and nieces, took possession of the land, claiming to own it, and had possession of it for more than 40 years before he made the deed to plaintiff.

Testimony was introduced tending to show the truth of the above claim. It was contended by defendants the above claim was untrue, and that defendants or their predecessors had been in possession for so long they had gained title by adverse possession.

We think the judge erred in taking the case from the jury., The record does not disclose a deed from the uncle, John McKenzie, to his nephew, and in that sense it is true the plaintiff has not shown record title in himself; but if it be true, as contended by plaintiff, that the nephew went into possession of the lands, and held them adversely long enough to acquire title to them, he could convey that title to plaintiff by deed, and the plaintiff would have a good title thereto, unless the defendants had held possession of the premises long enough to acquire title by adverse possession. It was a disputed question who had been in possession of the premises at different times, and the length of time the several parties were in possession. These questions should have been submitted to the jury under proper instructions.

Judgment reversed, and new trial ordered.

The other Justices concurred.


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    KEWEENAW ASSOCIATION v. O’NIEL.
    1. Highways — Donation of Right of Way — Conditions.
    Permission to road commissioners to open a highway across timber land provided they make payment for the timber cut by them, the amount of such timber to be estimated by the owner after the line of the road is staked out by the commissioners, gives them no authority to cut trees on the proposed right of way before the owner has had an opportunity to make his estimate.

      2. Accession — Confusion of Goods.
    The owner of logs which another manufactures into lumber, and in good faith mingles with his property of like kind and equal value, does not acquire title to the whole, but can only claim a proportionate share of the lumber.
    Error to Gogebic; Haire, J.
    Submitted April 4, 1899.
    Decided May 28, 1899.
    Replevin by the Keweenaw Association, Limited, against Charles O’Niel. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Ball & Ball, for appellant.

      Button & Norris, for appellee.
   Hooker, J.

The plaintiff brought replevin for a quantity of lumber which defendant caused to be manufactured from timber cut from land owned by the plaintiff. By way of defense the defendant asserted that some of this lumber was cut from trees that he obtained from another locality, and the remainder was the product of two trees that were cut by road commissioners in constructing a highway upon the premises of the plaintiff, and that the same were taken by him under permission given him by the road commissioners. There was evidence tending to prove the first of these claims, and the jury seem to have found it to be true. The second was proved by the undisputed evidence, and the court directed the jury to find for the defendant as to the two trees. Upon a general verdict and judgment for the defendant, the plaintiff has brought error, and contends that the defendant acquired no title to the two trees.

The defendant proved by one Sherman that he- (Sherman) was the manager of J. M. Longyear’s land office at Marquette; that Mr. Longyear was the land agent of the plaintiff, and the office mentioned was the office of the plaintiff; and that, in the ordinary course of business, correspondence relative to lands belonging to the plaintiff passed through the hands of the witness. The following letters were thereupon read in evidence:

“ J. M. Longyeae, Agent,
“The Keweenaw Association (Limited).
“Marquette, Mich., May 31, 1895. “Conrad Carlson,.Esq., (C. T.)
“ Clerk Board of County Road Commissioners,
‘‘ Bessemer, Mich.
‘ ‘ Dear Sir: The question of granting the right of way asked for by your board, as per your letter of the 27th inst., has been referred to the owners-of the lands touched by the highway in question, and I will advise you in due course as may be directed. Permit me to inquire upon what grounds the board of county road commissioners have assumed to act in the matter of opening a local road lying wholly within the boundaries of Ironwood township. Why is it that the township authorities are not moving in the matter of this highway, instead of the county board ?
‘ ‘ Yours truly,
“Dictated S. J. M. Longyear, Agent.
“M.”
“J. M. Longyear, Agent,
“The.Keweenaw Association (Limited).
“Marquette, Mich., July 2, 1895. “Clerk of Gogebic County, (C. T.)
“Bessemer, Mich.
“Dear Sir: Referring to your application of the 27th of May, on behalf of the board of county road commissioners, for the right of way for a highway in towns 47-47 and 48-47, same has been referred to the owners of the following described lands; and I am directed to advise you that the right of way will be donated, providing the board will provide and make payment for the value of timber to be cut in opening the right of way. The lands herein referred to are the entire section 3, and the N. E. qr. section 9, 47-47, and the S. E. qr. section 33, 48-47, from the south line northerly to the main line of the Duluth, South Shore & Atlantic Ry. Will you please have me advised as to when the board will have the line of the road staked out, so that we can go over it and estimate the amount of timber that will be cut, and also send me map or other description that will give me the width to be cut on our land ? We would prefer to estimate the timber after the line is actually staked out on the ground, if practicable, as in that way we will have the correct estimate of the timber.
“Yours truly,
“Dictated S. J. M. Longyear, Agent.
“M.”

The plaintiff contends that this testimony does not show that the road commissioners were given authority to cut the two trees standing upon the proposed right of way; and, if the letters were to be so construed, it does not appear that Longyear authorized the writing of said letters, or that he had authority to do so if he did. We think the plaintiff is justified in its contention. The letters indicate a willingness to permit the construction of the highway. They give no authority to do so, or to cut timber, except upon the condition stated therein. They contemplated that the plaintiff should have an opportunity to estimate the timber before it was cut, and did not authorize the cutting of timber until- that condition was complied with. It follows that the judgment must be reversed.

'There is another question raised by the record, which may arise upon another trial. The logs from the two trees, which, upon this record, appear to be the property of the plaintiff, were commingled with the logs from other trees, which the jury must have found to have been cut from lands not belonging to the plaintiff. It is contended, however, that this commingling of the logs resulted in such a confusion of property as to give the plaintiff the title to the whole. The doctrine of accession through confusion of goods is old. Stephenson v. Little, 10 Mich. 433; Wetherbee v. Green, 22 Mich. 317 (7 Am. Rep. 653); Fowler v. Hoffman, 31 Mich. 225. But it involves a forfeiture, and is never applied where it can be consistently avoided. In Wetherbee v. Green it is said:

“But this rule only applies to wrongful or fraudulent intermixtures. There may be an intentional intermingling, and yet no wrong intended; as where a man mixes two parcels together, supposing both to be his own, or that he was about to mingle his with his neighbor’s, by agreement, and mistakes the parcel. In such cases, which may be deemed accidental intermixtures, it would be unreasonable and unjust that he should lose his own, or be obliged to take and pay for his neighbor’s, as he would have been under the civil law. Morton, J., in Ryder v. Hathaway, 21 Pick. 305. In many cases there will be difficulty in determining precisely how he can be protected with due regard to the rights of the other party; but it is clear that the law will not forfeit his property in consequence of the accident or inadvertence, unless a just measure of redress to the other party renders it inevitable. Story, Bailm. § 40; Sedg. Dam. 483.”

In such cases, as in those where the commingling is lawful, as by agreement, the rule does not apply, and the parties become tenants in common of the whole. 6 Am. & Eng. Enc. Law (2d Ed.), 593, and cases cited. There is no reason why the same rule should not apply in any case where the goods are'identical in quality, and of equal value. Id. 597. The law will not deprive a wrong-doer of his property, if it can be justly avoided; and in 'the case of Mittenthal v. Heigel, (Tex. Civ. App.) 31 S. W. 87, it is said that, when mortgaged property is commingled.with property of like kind and equal value, the more equitable doctrine of giving to each party his due proportion will govern, rather than the harsher one of holding the whole subject to the mortgage. See, also, D. M. Osborne & Co. v. Cargill Elevator Co., 62 Minn. 400; Armstrong v. McAlpin, 18 Ohio St. 184.

The record discloses no bad faith, and there is nothing to indicate a difference in quality or value of the lumber of the same kind. If, therefore, the plaintiff was entitled to the product of the two trees, it should have contented itself with a proportionate share of the lumber.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.