author: Mooee, J.

text:
    McDONALD v. MICHIGAN CENTRAL RAILROAD CO.

    1. Railroads — Car, Inspector — Conductor—Fellow-Servants., A car inspector whose duty it is to supply safe machinery is not a fellow-servant of a freight conductor whose duty it is to-operate the machinery.

      2. Same — Rules of Company — Negligence.
    The conductor of a freight train tested the brakes on a car in the usual way, by setting and releasing them, before he started his train in the morning. At the third station from where the company’s inspector examined the car, the conductor applied the brakes, when something gave way, and he was thrown under the car and injured. It appeared that the ■chain attached to the brake-mast below the platform had before that time parted, and been repaired with hay wire, which gave way under the strain. Held, that the conductor had neglected no duty imposed upon him by a rule requiring him to know that there was a reliable brake on the car.
    Error to Gladwin; Sbarpe, J.
    Submitted November 21, 1902.
    (Docket No. 111.)
    Decided March 6, 1903.
    Case by Joseph D. McDonald against the Michigan Central Railroad Company for personal injuries. From a j udgment for plaintiff, defendant brings error.
    Affirmed.

      O. E. Butterfield (Henry Russel, of counsel), for .-appellant.

      De Vere Hall, for appellee, cited the following cases, in .addition to those given in the opinion:

      Swoboda v. Ward, 40 Mich. 420; Tangney v. J. B. Wilson & Co., 87 Mich. 453 (49 N. W. 666); Ashman v. Railroad Co., 90 Mich. 571 (51 N. W. 645); Balhoff v. Railroad Co., 106 Mich. 612 (65 N. W. 592); Anderson v. Railroad Co., 107 Mich. 591 (65 N. W. 585); Woods v. Railway Co., 108 Mich. 396 (66 N. W. 328); Fones v. Phillips, 39 Ark. 17 (43 Am. Rep. 264); Daves v. Railroad Co., 98 Cal. 20 (32 Pac. 708, 35 Am. St. Rep. 133); Denver Tramway Co. v. Crumbaugh, 23 Colo. 363 (48 Pac. 503); McElligott v. Randolph, 61 Conn. 157 (22 Atl. 1094, 29 Am. St. Rep. 181); Baltimore, etc., R. Co. v. Elliott, 9 App. D. C. 341; Chicago, etc., R. Co. v. Kneirim, 152 Ill. 458 (39 N. E. 324, 43 Am. St. Rep. 259); Cincinnati, etc., R. Co. v. McMullen, 117 Ind. 439 (20 N. E. 287, 10 Am. St. Rep. 67); Brann v. Railroad Co., 53 Iowa, 595 (6 N. W. 5, 36 Am. Rep. 243); Atchison, etc., R. Co. v. Moore, 29 Kan. 644; Shanny v. Androscoggin Mills, 66 Me. 420; Tierney v. Railway

      Co., 33 Minn. 311 (23 N. W. 229, 53 Am. Rep. 35); Coontz v. Railway Co., 121 Mo. 652 (26 S. W. 661); Chicago, etc., R. Co. v. Kellogg, 54 Neb. 127 (74 N. W. 454); Jaques v. Manufacturing Co., 66 N. H. 482 (22 Atl. 552, 13 L. R. A. 824); Flike v. Railroad Co., 53 N. Y. 549 (13 Am. Rep. 545); Chesson v. Lumber Co., 118 N. C. 59 (23 S. E. 925); Cameron v. Railway Co., 8 N. Dak. 124 (77 N. W. 1016); Anderson v. Bennett, 16 Or. 515 (19 Pac. 765, 8 Am. St. Rep. 311); Mulvey v. Locomotive Works, 14 R. I. 204; Carter v. Oil Co., 34 S. C. 211 (13 S. E. 419, 27 Am. St. Rep. 815); H. & T. C. R. Co. v. Marcelles, 59 Tex. 334; Gardner v. Railroad Co., 150 U. S. 360 (14 Sup. Ct. 140); Davis v. Railroad Co., 55 Vt. 84 (45 Am. Rep. 590); Moon’s Adm’r v. Railroad Co., 78 Va. 745 (49 Am. Rep. 401); Ogle v. Jones, 16 Wash. 319 (47 Pac. 747); Cooper v. Railway Co., 24 W. Va. 37; Brabbits v. Railway Co., 38 Wis. 289.

       Rehearing denied March 23, 1903.

       As to what servants are deemed to be in the same common employment, apart from statutes, where no question as to viceprincipalship arises, see note to Sofleld v. Smelting Co., (N. J.) 50 L. R. A. 417.

   Mooee, J.

The plaintiff recovered a judgment against the defendant for injuries received by him while in its. employ. The case is brought here by writ of error.

The plaintiff was in charge of a freight train running from Grayling to Mackinaw City. Grayling is about half way between Bay City and Mackinaw City. The defendant maintains a car repair shop at Bay City. At Gray-ling it has a train-master and four car inspectors or repairers. At Mackinaw City it has one car inspector or repairer. The inspectors or repairers at Mackinaw City and Grayling inspect the cars, and repair such broken or defective parts as they are able to with the appliances at hand, which are not sufficient to enable them to do any welding. If the repairs are of such a character as to require it, the cars are sent to the shop at Bay City.

While in charge of his train in September, 1901, as it approached the third or fourth station north from Gray-ling, the plaintiff attempted to set the brake upon the way-car. Something gave way. The plaintiff was thrown between the way-car and the car next front of it. The wheels of the way-car passed over him, injuring him severely. An examination after the injury showed that the chain attached to the lower part of the brake-mast had before that parted, and been repaired by using a wire, which was supposed to have been hay wire. This wire gave way under the strain, and hence the accident. This accident occurred upon the second round trip of the way-car after it left the repair shop at Bay City. It does not appear when or by whom the hay wire was used to repair the chain. It is claimed by defendant the car was in good repair when it left the shop at Bay City. This is not admitted by plaintiff. Mr. Trumley, the inspector at Grayling, who claims he inspected the car at that place, was a witness on the part of the defendant, and disclaimed all knowledge of the wire. The inspector from Mackinaw City was not produced as a witness.

Counsel for defendant say there are two questions presented by the record:

1. The liability of a railroad company to a freight conductor injured by the negligence of a car inspector, whose duty it was to inspect and repair the way-car.
2. The right of such a conductor to recover for injuries resulting from an unreliable brake upon a way-car, when, by a rule of the company, he was ‘ ‘ required to know that there was a reliable brake ” on the car before making use of it.

As to the first of these questions, the position of the defendant is shown by the following statements taken from the brief of counsel:

‘ ‘ The duty of the company is:
“ (1) To provide a reasonably safe place and reasonably safe appliances.
“ (2) To use reasonable care to maintain place and appliances in a reasonably safe condition.”

It is said the car was reasonably safe when it left the shop at Bay City. In regard to the duty of the company to maintain it in a reasonably safe condition, it is said:

“ It performs the duty by employing a competent servant to inspect and repair defects when they appear; and, before it can be held liable for injuries resulting from defects arising in the course of operation, it must have notice, either actual or constructive, that the defect exists, or that the servant is not performing the work assigned to him with reasonable care. In other words, there must be evidence that the master is not exercising reasonable supervision over his servants to see that they perform their work with reasonable care. There is no delegation of duty. It is performance. It is an exercise of reasonable care to maintain the appliance in a reasonably safe condition.”

Again:

“ The company furnishes this way-car to its GraylingMackinaw division. It has a number of employes who are to make use of the car, some to inspect it, some to ride upon it, and some to set its brakes. The man who is to inspect it fails in his work. The company has no means of knowing what moment an employe, hitherto trusty and reliable, will prove deficient. But it has exercised reasonable care to preserve the reasonably safe condition of this way-car while it is in use by the employés of that division, bj employing competent men to inspect the car at the end of every trip. Unless the plaintiff is able to show that the company knew of the existence of the defect, or that it had existed for a sufficient length of time to impose upon the company the duty to know, he cannot recover. This is the full measure of the defendant’s duty to the plaintiff in this case, and we submit it is not shown to have neglected that duty.”

Counsel cite cases which it is claimed sustain this contention.

It is the claim of plaintiff that the duty resting on defendant is not discharged by furnishing safe cars in the first instance; that such duty of maintenance is a continuing one, which it discharges through the employment of inspectors and repairers, and that the latter must exercise reasonable watchfulness and care to maintain such cars in a reasonably safe condition; and that defendant is liable for any omission of- duty in that regard on the part of such inspectors or repairers, where, as a proximate cause of such omission, injury results to plaintiff, as one using such car.

It must be conceded the authorities are not agreed, but the principles involved are not new in this State, The difficulty lies in the application of them to a given case. In Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111), Justice Cahill, speaking for the court, said:

“The rule may now be considered settled in this State, as well as in most of the States, not only that a master is bound to use all reasonable care in providing safe tools and appliances for the use of workmen in his employ, but that this is a duty which cannot be delegated to another so as to relieve him from personal responsibility. Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St. Rep. 298); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496).

‘ ‘ The duty of the master to his employé in this respect is clearly and well stated by Mr. Justice Morse in Van Dusen v. Letellier, just cited, at page 502:

“ ‘It is well settled by all the authorities that the master must provide his servant with a safe place to work in, and furnish him with suitable machinery and appliances with which to perform such work, and it is his duty to keep such machinery and appliances in .good repair. If he cannot do this himself personally, he must provide some, other person to take his place in this respect; and the person to whom the master’s duty is thus delegated — no matter what his rank or grade; no matter by what name he may be designated — cannot be a servant in the sense or under the rule applicable to injuries occasioned by fellow-servants. Such person is an agent, and the rulos of law applicable to principal and agent must •apply.’

“This doctrine is also clearly stated by Justice Field in Northern Pacific R. Co. v. Herbert, 116 U. S. 650 (6 Sup. Ct. 594), where the whole question is carefully discussed, and numerous authorities in New York, Massachusetts, Maine, and other States to the same effect discussed and approved. Four of the judges dissented from his opiniot, upon the ground that the case was governed by a special statute in Dakota, but expressed no opinion as to the common-law liability of the defendant under the circumstances of that case.

“In 1 Shear. & R. Neg. (4th Ed.) §§ 194, 204, this question is discussed and stated as follows:

“‘Sec. 194. The master also personally owes to his servants the duty of using ordinary care and diligence to x>rovide for their use in his service sound and safe materials, instruments, and accommodations, and such appliances as are reasonably calculated to-insure their safety. He is also personally bound to inspect and examine all these things from time to time, and to use ordinary cai’e and skill to discover and repair defects in them.’
“ ‘Seo. 204. None of the duties which have been previously stated as devolving upon the master personally can be by him delegated to any agent so as to relieve him from personal responsibility. He may, and often must, delegate the performance of such duties to-subordinates; but he remains responsible to all his servants for the-acts of these subordinates in that particular capacity, to the same extent as if those acts were literally his own.’

“ The doctrine of the text is ably supported by the citation of authorities.”

This case is cited with approval in Sadowski v. Car Co., 84 Mich. 100 (47 N. W. 598). After quoting from the case cited and from the argument of counsel, the-learned justice said:

“But the ingenious reasoning of counsel fails to take-account of an important limitation upon the rule which relieves a master from liability when a servant is injured through the fault of another. That doctrine was never-applied unless the one injured and the one at fault were engaged in the same general employment. Whatever conflict has arisen in cases has been as to what should be considered the same general employment. The rule adopted by the Federal courts, and in most of the States, and which seems to us most in consonance with reason and humanity, is that those employed by the master to provide or to keep in repair the place, or to supply the-machinery and tools for labor, are engaged in a different employment from those who are to use the place or appliances when provided, and they are not, therefore, as to-each other, fellow-servants. In such case, the one whose-duty it is to provide and look after the safety of the place-where the work is to be done represents the master in such a sense that the latter is liable for his negligence.

“ In Ford v. Railroad Co., 110 Mass. 240 (14 Am. Rep. 598), it was said:

“ ‘The agents who are charged with the duty of supplying safe-machinery are not, in the true sense of the rule relied on, to be-regarded as fellow-servants of those who are engaged in operating it. They are charged, with a master’s duty to his servant. They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the convenience of the employer may require.’

“In Northern Pacific R. Co. v. Herbert, 116 U. S. 653 (6 Sup. Ct. 596), Mr. Justice Field, speaking of the distinction that he found to exist between the providing of safe machinery and the business of handling and moving it, said:

“ ‘The two kinds of business are as distinct as the making and repairing of a carriage is from the running of it.’ ”

The case of Sadowski v. Car Co. was cited and quoted from in Roux v. Lumber Co., 94 Mich. 607 (54 N. W. 492). The fact is well recognized that there is a difference between the duty of furnishing a safe place or safe appliance to the employe, and the duty of seeing that the place or appliance so furnished is properly used.

In McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597), Justice Montgomery, speaking for the majority of the court, said:

“ The duty which the master owes to provide a reasonably safe place to work, and machinery in a reasonably safe condition, is not discharged for all time by providing machinery or premises safe in the first instance. Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572). This duty cannot be discharged by providing for an inspection by a fellow-servant, for wherever the duty of inspection, for the purpose of ascertaining whether there be a necessity to repair, or whether the machinery is in safe condition, exists, it is the master’s duty. The duty of diligence in maintaining the machinery in a reasonably safe condition .necessarily involves the duty of the master to take such reasonable measures to inform himself from time to time of the condition of the machinery as common prudence dictates. ”

And such we understand is the law. See the many cases cited in the brief of counsel for the plaintiff.

We now come to the consideration of the second question: Does thé enactment of rule 50 relieve the defendant of liability? The material parts of the rule read as follows:

‘ ‘ Conductors must know at all times that their train is provided with everything necessary to enable them to comply with the regulations of the road. They are required to know that there is a reliable brake on the rear car, and that a proper man is kept at it while the train is in motion.”

It is the claim of defendant that the rule imposed upon the plaintiff the risk of all dangers discernible by a prudent inspection, and that the defect was easily discernible; counsel citing Brennan v. Railroad Co., 93 Mich. 156 (53 N. W. 358); Enright v. Railway Co., 93 Mich. 413 (53 N. W. 536); Whalen v. Railroad Co., 114 Mich. 534 (73 N. W. 323); Peppett v. Railroad Co., 119 Mich. 640 (78 N. W. 900). An examination of these cases will show they are easily distinguishable from the one at bar. In the first case plaintiff knew of the dangers which it was claimed constituted negligence, and he also violated a rule of the company of which he had notice, which forbade him to do the thing he did. In the second case the plaintiff was hurt because of the negligence of a fellow-servant who was violating the positive requirements of a rule. In the third case the plaintiff was violating the requirements of a positive rule. In the last case cited, the follow ing is stated in the opinion of the court:

“The following facts are established oy the evidence
“1. That the engine was properly constructed.
“3. That defendant had performed its full duty as to inspection.
“3. It was the duty of the decedent, both after coming in and before going out, to inspect the engine, and, after coming in, to minute in a book, kept for that purpose, any repair needed. He did make such inspection, but reported nothing wrong. The wearing, if any there was, was easily discernible. He therefore assumed the risk of such defect.”

It is hardly believable that, if the inspector at Gray-ling had made the inspection which it was his duty to make, the defect in the chain would have escaped his observation. It would have been easy for the framer of the rule to have said, in so many words, that the conductor should inspect the brake, if the company intended to impose that duty upon him. The plaintiff testified that, before he started his train out in the morning, he tried the brakes at each end of the car in the usual and customary way, by setting them up and releasing them, and that they worked properly. It is manifest this was not such a severe test as the chain would be subjected to in an effort to stop a running train on a down grade. It also appears that that portion of the'brake-mast around which the chain winds was below the platform of the car, and, as the chain wound around it, the wire would be concealed. There is nothing in the record to show that plaintiff neglected any duty imposed upon him by the rule. See Lake Shore, etc., R. Co. v. Parker, 131 Ill. 557 (23 N. E. 237). The case was carefully tried and properly submitted to the jury.

Judgment is affirmed.

Hooker, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., took no part in the decision.


source: Caselaw Access Project

author: Grant, J. Montgomery, J.

license: Public Domain

text:
    McALLISTER v. DES ROCHERS.
    1. Mechanics’ Liens — Assignments.
    3 Comp. Laws, § 10734, does not require a laborer or material-man to make and file a statement of his claim of lien before it is assignable.
    2. Same — Error in Statement — Forfeiture.
    A clerical error in filing the statement of a lien, made in the honest belief that it is correct, will not subject the laborer or materialman to a forfeiture of his claim.
    3. Same — Homestead—Contract Not Signed by Wife.
    Where a parcel of land occupied as a homestead is worth more than $1,500, the excess over §1,500 is liable for a laborer’s lien under 3 Comp. Laws, § 10711, although the building contract is not signed by both husband and wife. Montgomery and Moore, JJ., dissenting.
    4. Same — Evidence op Value.
    Where the testimony in a suit to foreclose certain liens upon a homestead shows that the house was substantially completed at the time the liens were filed, the value of the lot, the contract price of the house, the fact that it was taken too low, and that there were some extras, there is some evidence of the value of the property at the time the liens attached. Montgomery and Moore, JJ., dissenting. «
    Appeal from Houghton; Streeter, J.
    Submitted December 13, 1901.
    (Docket No. 189.)
    (Docket No. 38.)
    Reargued January 14, 1903.
    Decided March 9, 1903.
    Bill by Hector McAllister against Edward Des Rochers and others to enforce a mechanic’s lien. Defendants John Eunkey, Sr., the Portage Lake Hardware Company, Limited, and David McIntyre filed separate cross-bills to foreclose similar liens. From a decree dismissing the several bills, the lien claimants appeal.
    Reversed.
    Complainant was a laborer, and performed work upon a house erected upon a lot of defendant Des "Rochers. Four other laborers assigned their claims to him before proceedings were commenced to enforce a lien. The other defendants filed separate cross-bills in the suit, to foreclose their liens on the same premises. Des Rochers let a contract for the erection of the building, but it was not signed by his wife. There was evidence showing that the lot was worth $450. The contract price for the construction of the building was $1,800, and there were claims for extras. The total amount of the liens was $575.83. The court below dismissed the bills for the reason that the premises constituted a homestead, and the liens could not be enforced because the wife had not signed the contract.

      Dunstan & Hanchette, for appellants.

      Ohadbourne & Bees, for defendant Des Rochers.
   Grant, J.

(after stating the facts). The first question urged by the defendant Des Rochers is that under the statute, until a statement is filed as provided therein, there is no lien or claim of lien which can be assigned under 3 Comp. Laws, § 10734. We think this too narrow .a construction to be placed upon the statute. It provides that “all liens or claims for liens which may arise or accrue under the terms of this act shall be assignable, and proceedings to enforce such liens may he maintained by and in the name of the assignees.” The purpose of this statute was to permit those who furnished labor and material in the construction of the building to assign their claims, so that one proceeding in the interest of economy should suffice. The statute does not require that the laborer or the materialman must first make and file a statement of his claim before he has an assignable claim.

Cross-complainant Funkey filed a claim for $271.41, whereas in fact there was due him only $217.41. Mr. Funkey at no time claimed more than $217.41. In filing the claim a clerical error was evidently made in the transposition of the figures, — a mistake not uncommon, even in briefs of counsel in the citation of authorities. The agent of the Portage Lake Hardware Company filed a claim of $110.68, whereas in fact only $88.96 was due. The error .arose in charging up to the contractor some registers which were not used in Des Rochers’ house. They appear to have been entered upon the books, but were not stricken •out, or the account credited with them, when the affidavit was filed. We think there was no evidence of bad faith, or such carelessness as to bring the case within the rule in Gibbs v. Hanchette, 90 Mich. 657 (51 N. W. 691).

Can a mechanic’s lien be enforced upon premises constituting a homestead, the value of which is in excess of $1,500 ? The answer depends upon the construction to be placed upon the statute (3 Comp. Laws, § 10711), which reads as follows:

“In case the title to such lands upon which improvements are made is held by husband and wife jointly, or in case the lands upon which such improvements are made are held and occupied as a homestead, the lien given by this act shall attach to such lands and improvements if the improvements be made in pursuance of a contract in writing signed by both the husband and wife. ”

Does the word “homestead,” as used in the statute, mean the house, buildings, and premises occupied by the householder and his family as their home, without regard to value, or is it used in the more restricted sense of an exemption, as used in the Constitution? “Homestead,”' defined by the Constitution, does not mean the homestead as used in its popular sense, or as used in other branches of the law. One of its descriptions is its value, to wit, $1,1500. Beyond that value it is not exempt. It was, therefore, early held by this court that where the, homestead provided by the Constitution exceeds in value $1,500, and is indivisible, legislation was necessary in order to secure this exemption to a debtor, and that without such legislation no homestead exists in favor of the family. Beecher v. Baldy, 7 Mich. 488; Zoellner v. Zoellner, 53 Mich. 626 (19 N. W. 556). Subsequently, to meet this decision, the legislature provided for a determination of the value of the premises occupied as a homestead, and securing to the debtor $1,500. 3 Comp. Laws, § 10369. Under this act an appraisal is to be made when an officer has an execution or a decree to, enforce against the homesteader. If the appraisal exceeds $1,500, the householder must pay the excess over and above that amount, or the amount due-on such execution or decree, within 60 days. If he does not do this, the premises may be sold. A mechanic’s lien was held enforceable under the above statute, although the lien law made no provision for a lien upon a homestead. Lamont v. Le Fevre, 96 Mich. 175 (55 N. W. 687). Mortgages and deeds not signed by the wife, though void as to the homestead, are valid a,s to the excess over and above the homestead. Dye v. Mann, 10 Mich. 291; Wallace v. Harris, 32 Mich. 380. This holding applies only to cases where the premises are divisible. A mortgage for the purchase price is valid without the wife’s signature. Amphlett v. Hibbard, 29 Mich. 298.

We think the legislature in this act used the word “homestead,” not in its broad and popular definition, but in its restricted definition as used in the Constitution. The purpose was not to exempt the*premises used for the family as a home from the operation of the lien law so as to protect premises worth, perhaps,'$50,000 or more, but to protect the homestead provided for in the Constitution. Counsel say that laborers and materialmen might protect themselves by ascertaining whether the contract is signed by the wife. So they might do this where no lien is provided for; and, if such men had always been thoughtful and careful enough to so protect their • interests, there would have been no necessity for any lien law. Under the construction contended for by defendant Des Rochers, the lien law would be valueless in a large part of the transactions in which laborers and materialmen are engaged. We think the learned circuit judge erred in the conclusion reached.

Counsel for defendant contend — citing Mills v. Hobbs, 76 Mich. 122 (42 N. W. 1084) — that the value of the premises at the time the lien attaches controls, and that there is no evidence in this case of the value at that time. The testimony shows that the house was substantially, if not entirely, completed at the time the liens were filed. This appears from the fact that Mr. McIntyre, who had the contract for painting and finishing the house, for which he was to receive $100, with certain extra charges, had nearly completed his work, when Des Rochers refused to let him finish it. The value of the lot, the contract price for erecting the building, the extras furnished, and the testimony that the contract ivas taken at too low a figure, are some evidence of the value of the property; and upon this basis it is worth the full amount of the liens over and above the homestead exemption. When proceedings are taken under the decree of foreclosure, steps must be taken under section 10369, above cited, and the interests of the defendant in this regard can then be fully disposed of.

Decree reversed, and decree entered for the complainant and cross-complainants, with the costs of both courts.

Hooker, C. J., and Carpenter, J., concurred with Grant, J.

Montgomery, J.

(dissenting). I cannot agree with my Brother Grant in his conclusion in this case. It cannot be doubted that the legislative declaration in 3 Comp. Laws, § 10711, that a lien shall attach to a homestead for improvements made upon the property under certain conditions, excludes a lien in all other cases. It is required, then, that, before a lien shall attach “in case the lands upon which the improvements are made are held and occupied as a homestead,” there shall be a contract in writing, signed by both husband and wife. That the premises in this case were so used and occupied within the meaning of the statutes relating to homesteads appears not to be questioned. But a construction of the word “homestead ” is adopted which, it seems to me, is entirely untenable. If it is true that the word “ homestead,” used in this sentence, means a homestead not exceeding in value $1,500, then it logically follows that no writing is required in such case, and the lien attaches to the whole property, not to the excess over $1,500, for the only requirement of writing is as to property held and occupied as a homestead. If, on the other hand, this property is in-fact held and occupied as a homestead, then, unless we ignore the plain language of the statute, no lien can attach unless the contract therefor be in writing. This construction of the term “ homestead ” is plainly that which has been adopted by the legislature.' If we turn to 3 Comp. Laws, § 10362, we find the legislature declaring that:

,“ A homestead, consisting of any quantity of land not exceeding forty acres, and the dwelling house thereon and its appurtenances, to be selected by the owner thereof, and not included in any recorded town plat, * * * shall not be subject to forced sale on execution.”

If this section stood alone, it is very clear that the value of the exempted property would not affect the right of exemption. It is only by virtue of other provisions of the act, namely, section 10369, that the limit of $1,500 is fixed, by authorizing a proceeding under which tbe excess in value over $1,500 may be reached. Tbe statute in this case (3 Comp. Laws, § 10711) contains no such provision. The lien does not attach in any case to lands held and occupied as a homestead, unless tbe contract be in writing.

There is another difficulty that confronts tbe complainant in the present case, as it seems to me. This record fails to show what the value of the premises was at tbe time the lien attached. By this I do not mean at the time tbe claim of lien was filed, but at the time when the work was done.

In my opinion, the decree should be affirmed.

Moore, J., concuri-ed with Montgomery, J.


author: Hooker, O. J. Moore, J.

text:
    GUSTAFSON v. EGER.
    1. Witnesses — Competency—Estates op Decedents — Agent in Making Contract — Set-opp.
    Where an administrator brought suit upon a promissory note, testimony by defendant’s husband in her behalf, to prove a set-ofE by sales of merchandise made for her by him, showed that he acted as her agent in making a contract involved in the suit, and was therefore inadmissible. Act No. 239, Pub. Acts 1901.
    2. Same — Payments.
    If such sales were made under an arrangement that they should be treated as payments upon the note, each payment involved a contract of purchase, and an agreement that the price should apply as payment, and the evidence was therefore inadmissible.
    Moore and Grant, JJ., dissenting.
    Error to Marquette; Stone, J.
    Submitted April 22, 1902.
    (Docket No. 101.)
    (Docket No. 35.)
    Reargued February 6, 1903.
    Decided March 9, 1903.

      Assumpsit by Frank Gustafson, administrator, with the will annexed, of the estate of Augusta D. Gustafson, deceased, against Mary A. Eger, upon a promissory note. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Ball & Ball, for appellant.

      Clark & Pearl, for appellee.'
   Hooker, O. J.

The defendant and her mother were tenants in common of a stock of jewelry. The defendant purchased her mother’s interest, giving four notes in payment. Three of the notes were paid, and this action was brought' upon the last to fall due. No controversy arises over the giving of the note. The defense made is by way of payment and set-off. After purchasing the property, the defendant conducted a jewelry business; her husband being manager and agent for her in the conduct of the business. Upon the trial he was permitted to testify that he sold to the mother articles of jewelry from the store. This testimony was objected to upon the ground that he was disqualified as a witness, for the reason that the mother was dead, under the statute (3 Comp. Laws, § 10212, as amended by Act No. 239 of the Public Acts of 1901), which provides:

‘ ‘ When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person; and when any suit or proceeding is prosecuted or defended by any surviving partner or partners, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of the deceased partner, and not within the knowledge of any one of the surviving partners. No person who shall have acted as an agent in the making or continuing of- a contract with any person who may have died shall be a competent witness, in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract, against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives. And when any suit or proceeding is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters 'which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviving officer or agent of the corporation ; nor, when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation (or its assigns), shall any person who is or has been an officer or agent of any such corporation be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person: Provided, that whenever the words ‘the opposite party’ occur in this section it shall be deemed to include the assignors or assignees of the claim, or any part thereof, in controversy. And provided further, that whenever the deposition, affidavit, or testimony of such deceased party, taken in his lifetime, shall be read in evidence in such suit or proceeding, that the affidavit or testimony of the surviving party shall be admitted in his own behalf on all matters mentioned or covered in such deposition, affidavit, or testimony.”

It is urged on behalf of the defendant that this testimony is not within the prohibition of the statute, because the husband had nothing to do with the original purchase by his wife of the jewelry. That contract was executed when the notes were given. It is now proposed to defend against the notes by showing a set-off. Every set-off involves a contract. In this case a contract was made between the parties to this suit whenever the mother purchased any article of jewelry which is now made the subject of set-off. She purchased them through the husband and agent of the defendant. These are as much contracts, within the terms of the statute, as any other contract.

The husband was also allowed to testify that at some time he heard the mother state that she intended to purchase “quite a good deal of goods out of the store,-and that the goods so purchased should apply upon this last note.” It may be that it is inferable from the testimony that this was said at the time the original contract was made, but we do not discover that this should make any difference. In the first place, it is doubtful if it can be called a part of the original contract,, for the reason that there is nothing definite or certain about it. It created no obligation that could be enforced. The mother was at liberty to purchase jewelry, or not, as she chose; and, had she refused to do so, no action for breach of contract could have been maintained.

The effect is not different if it be said that the jewelry purchased under the arrangement is not to be treated as a set-off, but payment, for the reason that such payment involved a contract of purchase, and an agreement, either previous or subsequent, that the price should apply as a payment.

The judgment should be reversed, and a new trial ordered.

Carpenter and Montgomery, JJ., concurred with Hooker, C. J.

Moore, J.

(dissenting). The plaintiff is the administrator of Mrs. Gustafson, deceased, who was the mother of defendant. Mrs. Gustafson (then Mrs. Anderson) and the defendant became, by death of Mr. Anderson, the owners of a stock of jewelry. In August, 1889, Mrs. Eger bought her mother’s interest in the business, and gave her four notes, the first three of which were paid, and are not in controversy here. The last note was dated August 16,1889, due in four years, and was for $1,134.19. Suit was brought upon it in 1901. The plea of the general issue, with notice of set-off, was filed. It was the claim of the defendant that this note had been fully paid by making to her mother payments of cash, by furnishing her goods out of the store, and by making payments to third persons at her request. Upon the trial the plaintiff introduced the note which was signed by the defendant in evidence. The defendant was then sworn, and testified without objection

“I am in the jewelry business, carrying on a jewelry store, and have been since August 16, 1889. During this time my husband, Otto Eger, has been my chief clerk or manager, and is still the manager. During the carrying on of this store, since August 16, 1889, I have myself had supervision and oversight of the business. I have been in the store myself. My husband, Otto Eger, kept the books. During tKe keeping of these books I had general oversight of the accounts as they were entered, and looked them over; knew just what was on the books, and do today.”

Mr. Eger was then sworn, and testified:

“I reside in Ishpeming, and am the husband of the defendant in this case. I have been engaged in the jewelry business for the last 10 or 15 years, in my wife’s employ. I know what the note of Mary A. Eger, dated August 16, 1889, was given for. The note was given for a half interest in the firm of Anderson & Co., which my wife bought from her mother, and as part payment for it. There were four notes given in all, aggregating $4,134.19. This note represents the last payment. Mrs. Anderson (my wife’s mother) said that she intended to purchase quite a good deal of goods out of the store, and that the goods so purchased should apply upon this last note.”

Defendant’s counsel then asked the witness, “Did she, from time to time, purchase goods from the store in question under that understanding ? ” To said question plaintiff’s counsel objected for the reason that it appeared that the witness was the agent of the defendant, managing the store for her, during all that time, anq[ represented the defendant in the contracts made with Mrs. Gustafson, if any contracts were made, and that whatever transactions he had with Mrs. Gustafson were matters which must be equally within the knowledge of Mrs. Gustafson, deceased, and that his testimony in relation thereto was excluded by statute. .

The Court: The evidence does not show that he was the agent in making this contract. (Objection overruled, to which ruling the plaintiff’s counsel excepted, and witness answered, ‘ Yes, sir,’ and also that Mrs. Gustafson received cash, also, as well as items of merchandise.)”

He then testified that sufficient merchandise and money had been paid to Mrs. Gustafson, or to third persons by her direction, to more than pay the note.

Among other things, the judge charged the jury:

“That brings us to the testimony; and, substantially, the testimony offered here on the part of the defendant was the testimony of Mr. Eger, the husband, and the wife. The claim is made here that this arrangement was made by Mrs. Eger and Mrs. Gustafson as to the application of the payments. And it is without question that the note here was made by Mrs. Eger herself, in her own handwriting. She was not acting as agent or through an agent there, but did the act herself. So the court has admitted the evidence of Mr. Eger in this case, notwithstanding it had to exclude the evidence of Mrs. Eger, because Mrs. Gustafson, the payee of this note, being dead, and this suit being brought by her personal representative, Mr. Gustafson, death having closed the mouth of Mrs. Gustafson, the law closes the mouth of Mrs. Eger as to any matters that were equally within the knowledge of the deceased. But I advise you that this rule would not exclude the testimony of Mr. Eger. That testimony, therefore, is before you; and the court holds that he is not such an agent, having to do with the contract, as the statute contemplates.”

The jury rendered a verdict in favor of the defendant. The case is brought here by writ of error.

It was conceded by counsel upon the oral argument that the only question involved is whether the court erred in allowing Mr. Eger to testify. The statute to be construed reads as follows:

“Sec. 101. When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge pi such deceased person; and when any suit or proceeding is prosecuted or defended by any surviving partner or partners, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of the deceased partner, and not within the knowledge of any one of the surviving partners. No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died shall be a competent witness, in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract, against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives.” Section 10212, 3 Comp. Laws, as amended by Act No. 239, Pub. Acts 1901.

This section, since its amendment, has not been construed by this court. It is the claim of counsel that Mr. Eger was the agent of his wife in selling the goods and making the payments mentioned in the bill of set-off, and that each sale was a contract about which the person making the sale could not testify, and comes within the terms of the statute. They say:

“This statute may, and undoubtedly will, work hardships in certain cases; but the legislature has announced it as the policy of the law, in cases where the lips of one party are sealed by death, to seal the lips of not only the opposite party himself, and those claiming under him, but also the lips of those agents who the law presumes are biased or prejudiced by business relations towards the surviving party. The legislature having so announced the policy of the law in plain and unmistakable terms, allowing of no misinterpretation, and without the slightest ambiguity, it becomes the duty of the court to enforce the statute as it is found on the statute books.”

We cannot agree with counsel in this contention. The contract sued upon in this case is the note signed by Mrs. Eger, and given to her mother. The testimony does not disclose that Mr. Eger had anything to do with the making or continuing of this contract. It is true, he furnished goods and made payments of money which were proper subjects of set-off against the claim for which his wife was sued. If the delivery of each article of goods, or the making of each payment of money, which makes up the 50 items of defendant’s set-off, constitutes the person making the delivery of the goods or the payment of the money the agent of the principal, within the meaning of the statute, then, if these goods had been delivered and payments had been made by 50 different clerks in the store, none of them could have testified to the payments or sales made by him or her. We do not think any such result could have been contemplated by the legislature, and such is not the language of the statute. We do not think it applies to sales made by clerks under the supervision of the principal, who fixes the price of the articles sold, and whose directions are simply followed in making the sales. Mrs. Eger was in the control and management of her own business. She made a contract with her mother to buy the mother’s interest in the business, and gave her, as a part payment, the note upon which suit is brought. It is not shown that Mr. Eger had anything to do with the making or continuing of this contract. Had his wife sent $500 by him to her mother, which was paid upon this note, but not indorsed thereon, is it possible that he could not testify to the payment? If so, why not testify as to a payment made in goods ? I do not think these questions should be answered that he could not. Such a construction of the statute as is urged would make it nearly or quite impossible to ever make proof of the transactions between parties after the death of one of them, and would prevent giving the best evidence of the transaction.

The judgment should be affirmed.

Grant J., concurred with Moore, J.


author: Grant, J.

text:
    KUNDINGER v. CITY OF SAGINAW.
    1. Municipal Corporations — Public Improvements — Decision oe Council.
    A resolution reciting the intention and understanding of the common council of a city that a bill would be introduced in the legislature to authorize the issue of bonds to construct a bridge, and directing plans and specifications and estimates to be made, tqgether with other similar resolutions, is a sufficient compliance with a charter provision requiring the common council to declare by resolution its decision to make the improvement.
    2. Same — Contracts—Lowest Bidder.
    A charter which authorizes the board of public works to determine whether a public improvement shall bq, done by the city or be let by contract, and, if it determines to let it by contract, directing it to advertise for proposals for furnishing materials and performing the work, does not require a contract to be let to the lowest bidder.
    3. Same.
    Where a city charter does not require the work of constructing a public improvement to be let to the lowest bidder, a contract for building a bridge is not illegal because made in pursuance of a resolution of the council requiring each bidder to furnish with his proposal a complete plan or drawing showing the style and kind of bridge he intended to construct.
    4 Same — Awarding oe Contract.
    Where a city charter does not require a contract for a public improvement to be let to the lowest bidder, the awarding of a contract to a bidder is discretionary with the proper officials of the city, and their action, taken in good faith, is final.
    ' 5. Same — Injunction—Fraud.
    Injunction bills to restrain the completion of public improvements are not favored where there is no proof of fraud and the contract price is not exorbitant.
    6. Same — Board oe Public Works — Plans and Specifications —Finality oe Action.
    Where a city charter requires the board of public works to prepare, “so far as necessary, plans and specifications” for public improvements, and its members have exercised their best judgment, and have prepared plans and specifications which bidders can understand, the action of the board is not subject to review in the courts.
    7. Navigable Rivers — Bridges—Boards oe Supervisors.
    The authority granted by the board of supervisors to the city of Saginaw in 1891, to construct a bridge across the Saginaw river on Genesee avenue, was sufficient to authorize its construction in 1902.
    8. Same — Objection bx Taxpayer.

      A taxpayer cannot prevent the construction of a bridge across a navigable river on the ground that it has not been authorized by the board of supervisors.
    Appeal from Saginaw; Snow, J.
    Submitted February 3, 1903.
    (Docket No. 179.)
    Decided March 12, 1903.
    Bill by Michael Ivundinger .against the city of Saginaw, William B. Baum, mayor, Alfred Davies, clerk, the board of public works, and the National Bridge Company, to enjoin the carrying out of a contract for the construction of a bridge. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    The undisputed facts as shown by this record are that the Saginaw river, which flows through the city of Saginaw, is a navigable stream, and that the point where Genesee avenue in the city of Saginaw intersects said river is at present occupied by a bridge which has been in use for all the purposes of highway travel, including electric street cars, both city and interurban; that on October 14, 1901, the common council, upon the report of an expert bridge engineer, condemned the bridge as unsafe and unfit for electric street-car traffic, and that from that time to the present time no street cars have run over it, and that the present attempt upon the part of the city authorities is to build a bridge of sufficient capacity to accommodate all highway travel of every kind, and the heavy electric street-railway traffic to which said bridge will be subjected when completed; that said Genesee avenue is the most important and general thoroughfare in the city of Saginaw; that application was made by the city of Saginaw to the board of supervisors of Saginaw county at its October session, 1891, to construct an iron swing bridge, with two openings, each 75 feet in width in the clear, providing for the passage of vessels and boats navigating said river, and that said permission was granted by the board of supervisors.
    On May 21, 1899, the common council of the city approved a bill, by a vote of 28 to 3, to be presented to the legislature, enabling the city to borrow money to construct a bridge. The bill was presented and passed. It reads as follows:
    “Section 1. That the common council of the city of Saginaw be and it is hereby authorized and empowered to borrow, on the faith and credit of said city, the sum of not exceeding two hundred thousand dollars, for a period of not exceeding twenty years, at a rate of interest not exceeding five per cent, per annum, and to make, execute, negotiate, issue, and sell the bonds of said city therefor, with proper interest coupons attached thereto, in such manner as said common council shall determine, which said bonds in no case shall be sold for less than their par value.
    “Sec. 2. Said bonds shall be denominated bridge bonds, and the proceeds thereof shall be used in defraying the expense of building approaches to and the building of a bridge across the Saginaw river at Genesee street, in the city of Saginaw, county of Saginaw, and State of Michigan, and for no other purposes.
    “Sec. 3. Said improvements shall be made and money expended therefor by the board of public works under the direction of the common council.” Act No. 446, Local Acts 1899.
    Various proceedings were afterwards had by the board of public works and by the common council, and various bids received, and on January 13,1902, the common council, by unanimous vote, instructed the board of public works to at once advertise “for competitive plans and bids, in accordance with the specifications now on file in the city engineer’s office, for a bridge over the Saginaw river, located at Genesee avenue, in the city of Saginaw, Mich.” By the same motion the council recommended the employment of an expert bridge engineer to examine all bids submitted. Pursuant to this resolution, the board of public works advertised for sealed proposals for constructing a bridge at Genesee avenue, and that each bidder be required to furnish with his proposal a complete plan or drawing showing the kind and style of bridge that he intended to construct, and that each bidder be required to deposit with his proposal a certified check on some bank in the city of Saginaw for $3,000, or a bank draft on New York, and that the successful bidder be required to furnish a Fidelity or other surety company bond, in such amount as the board of public works might determine, for the faithful performance of the contract.
    The board of public works reported all the bids received by it on February 27th to the common council at a meeting held on the 24th day of March, 1902, recommending that the contract be let to the King Bridge Company for a swing bridge, in accordance with one of its proposed plans, at a cost of $155,475. At this same bidding the defendant National Bridge Company put in a number of bids, including a bid on plan numbered B-2, with the Scherzer Rolling Lift, for $184,000. And at this same meeting of the council there was presented a communication from the board of trade of the city of Saginaw in support of a Scherzer Rolling Lift bridge, which was represented by the following resolution:
    “ To the Honorable the Common Council of the City of Saginaiu:

    “ The following action was taken at a meeting held at the board of trade rooms, Friday, March 21, 1902:
    ‘ ‘ Resolved, that we believe it would be a serious mistake to erect a bridge at Genesee avenue that was recommended by a bare majority of the board of public works at its meeting last evening.
    “ We believe that this location demands the best and most modern structure now known.

      “We believe that the Scherzer Rolling Lift bridge is such a structure.
    “Therefore, we request that the common council cause to be constructed at Genesee avenue a modern bridge, with a Scherzer Rolling Lift draw span, at the earliest possible time, believing that by so doing the interests of the city will be best subserved.”
    This resolution was approved by citizens to the number of 464. The common council rejected the recommendation of the board of public works to let a contract to build a swing bridge. The council then authorized and directed the hoard of public works to contract with the National Bridge Company in accordance with its plans submitted, including the Scherzer Rolling Lift, at a cost of $184,000, and so notified the board' of public works.
    Subsequently the contract with the National Bridge Company for a Scherzer Rolling Lift bridge was prepared, approved by the city attorney, executed by the National Bridge Company, and two bonds were presented, signed by the Fidelity & Deposit Company of Baltimore, Md. The plan of the proposed bridge was approved by the Secretary of War. At this point in the proceedings, and on June 26, 1902, the complainant filed this bill to enjoin the defendants from carrying out the proposed contract, alleging that it was illegal and void.
    The National Bridge Company made an agreement with the Scherzer Rolling Lift Bridge Company by which it secured the right to use its- patent appliance in the construction of this' bridge at the agreed price of $6,000. General plans and specifications were made by the city engineer under the direction of the board of public works, and were on file. The engineer also made an estimate of the probable cost, showing it to be $186,500. These plans and specifications contained all the data essential for intelligent bidding. The specifications number 151, and cover 31 pages of the record, besides an outline plan of the bridge prepared by the city engineer. There were 58 bids. The American Bridge Company made six different plans and six bids, ranging in price from $149,000 to $188,000; another submitted three different plans and three bids, ranging from $181,000 to $192,000; another offered thirty plans and thirty bids, ranging from $152,327 to $203,727.
    The city engineer testified, in answer to the question why he did not prepare one complete plan, and specifications for one bridge, so that bids could be received on that,—
    “ Because of an understanding I had that they wanted the widest possible competition, and the general belief that the bridge companies, by submitting their own plans, would give us a bridge which would fulfill the requirements of the specifications, and at less price than, perhaps, we, who are not bridge specialists, could prepare.”
    There was also testimony that this method of securing bids was quite common, and fully protected the interests of the city.
    The case was heard upon pleadings and proofs taken in open court, and the bill dismissed.

      F. E. Emerick (L. T. Durand, of counsel), for complainant.

      Miles J. Purcell, for defendant National Bridge Co.

      Henry E. Naegely (George W. WeadocJc, of counsel), for other defendants.
   Grant, J.

(after slating the facts). The necessity for the construction of a new bridge to replace the old one over the river at Genesee avenue had long been recognized, both by the city authorities and the traveling public. It had been the subject of discussion in the various proceedings of the council for about two years. Plans had been made and submitted to the Secretary of War, and had been rejected. Others were made. The matter was the subject of open discussion. The bridge was finally condemned as unfit for use by heavy teams and street cars. A plan was finally approved by the Secretary of War, and the common council proceeded in accordance with ’ the authority of the special act, and proceedings were had which resulted in authorizing the contract to be made with the defendant the National Bridge Company.

Fraud is charged in the bill. No claim of fraud or dishonesty on the part of the public officials is made in the briefs of counsel, nor was any made upon the oral argument. This charge, therefore, has failed, and the only questions before the court are questions of law, based upon the undisputed facts of the case.

The first question presented is, Does the special act confer independent authority upon the common council and the board of public works to construct the bridge, or is their power limited thereunder by the provisions of the charter ? The contention of complainant is that the act is supplementary to the charter, and that, while the act authorizes the construction of the bridge, all the proceedings preliminary to and authorizing a contract for its construction must be in accordance with the charter. The contention of the defendants is that the special act confers authority upon the common council and board of public works to construct the bridge without any reference to the charter provisions. The court below held with the complainant that the special act and the charter must be construed together, but found that the proceedings were regular under the charter provisions. We find it unnecessary to determine whether the special act alone should control, as we agree with the conclusion of the court below that the proceedings are in substantial compliance with the terms of the charter.

Complainant insists that there-is a fatal defect, in that section 9 of title 12 of the charter was not complied with. Section 2 of the same title provides that “the board of public works shall, after the said public improvements have been first duly ordered by the common council, have supervision and charge of the construction * * * of bridges,” etc. Section 9 provides that, “whenever the common council of said city shall have decided upon the making of any such public improvement, it shall so declare by resolution,” whereupon the board of public works is required to make an estimate of the materials, cost, expenses, etc. The objection is a technical one at best. We think the various resolutions and proceedings of the common council constitute a sufficient compliance with the charter provisions. The resolution of the common council on February 34, 1898, recited the intention and understanding that an act would be introduced in the legislature at the next session to authorize the issue of bonds to construct the bridge, and directed plans, specifications, and estimates to be made. Other similar resolutions were passed subsequently and acted upon. The legislature, by the special act, recognized the question of a bridge as settled. The decision and determination of the council could not be made to appear more clearly by a formal resolution.

The next contention of the complainant is that the method adopted by the council as a basis for bids is illegal. He contends, that the common council and the board of public works should have determined exactly upon the character of the bridge proposed to be built, and solicited bids only for one kind of a bridge. He claims that if the council desired the Scherzer Rolling Lift bridge, the draw of which was patented, it should have determined upon that, and solicited bids. Counsel cite, as supporting this proposition, Cass Farm Co. v. City of Detroit, 124 Mich. 438 (83 N. W. 108); Moreland v. Common Council of Detroit, 130 Mich. 343 (89 N. W. 935); McBrian v. City of Grand Rapids, 56 Mich. 95 (22 N. W. 306); and other cases. All of them are, however, cases, as we read them, wherein the charter involved required the contract to be let to the lowest bidder. In such cases the city authorities must determine the kind and character of the bridge, materials, etc. This rule, however, does not apply to cases where the charter does not require the contract to be let to the lowest bidder. Yarnold v. City of Lawrence, 15 Kan. 126. This is a well-reasoned case by Justice Brewer.

Section 5 of title 6 of the charter provides:

“ Whenever any improvement is ordered in any street, except paving, repaving, planking, or macadamizing, the board of public works shall have authority to determine whether such improvement shall be done by the city under the direction and supervision of the board of public woTks, or whether bids shall be solicited and the improvement be let by contract.”

Section 4 of the same title provides:

“The common council shall have, the power to cause the common sewers, drains, vaults, arches, arid bridges, culverts, wells, pumps, and reservoirs to be bu'ilt in any part of said city, to cause the grading, raising, leveling, repairing, paving, repaving, repairing,'or covering with stone, brick, blocks, plank, or other material any street, avenue, lane, alley, highway, public ground, sidewalk, or crosswalk of said city, but all such improvements shall be done by the board of public works, as herein provided; but ho such public improvement shall be made by paving in any way except upon an affirmative vote of two-thirds of all the aldermen-elect, unless a majority of all the property owners having property fronting on the place to be so improved shall have petitioned the common council to make such improvement, in which case a majority vote of the council shall be sufficient to order the same.”

Section 9 of title 12 provides:

“The said board of public works shall (except in the case of the cleaning and deepening of ditches and gutters, and the repair of streets and sidewalks) advertise for proposals, except as herein otherwise provided, for the furnishing of material and for the performance of such work, and shall require all bidders to furnish security for the performance of proposals tendered to said board if the bid is accepted, and also security for any contract awarded; and all bids submitted to said board shall be publicly opened by it, and, as soon as may be thereafter, reported by the said board, together with its recommendation in respect thereto, to the common council, and no contract shall be let by the said board until it is duly authorized by the common council.”

These are the strongest provisiohs of the charter in regard to letting contracts after advertising. Manifestly they do not require that contracts must be let to the lowest bidder. It is discretionary with the board, and when it acts in good faith its action is final.-

The method adopted by the defendants secured to the city competitive bids both upon plans and cost. See Attorney General v. City of Detroit, 26 Mich. 263. This view of the case is well stated by the chief engineer of the defendant bridge company, in describing the competition which the plans and specifications invited. He testified:

“ The general specifications and Cooper’s specifications called for the plans referred to, — call for a definite result; that is, abutments of a certain kind, ornamented in a certain way, balustrades of a certain kind, hand railing of a certain kind, draw span of a certain width located at a certain point, the abutments to begin at a certain point and end at a certain point; the grade not to be higher than necessary, and, if possible, not higher than the old bridge; and the quality of all materials-was defined; and any bridge company in figuring upon that would want and naturally be anxious to get the most economical bridge that could he gotten, beauty and strength considered. Now, then, a great many different plans could be gotten, and they would all conform to those certain necessary qualifications; the roadway paving would be a certain kind, the walk and roadway he a certain width, capacity, etc., the roadway and sidewalks and street-car tracks just as called for, and in the location, and as to the height of the roadway, all those things would be the same, and in any case the city would get a thoroughly good bridge.”

The complainant gave no testimony that the contract price was excessive. It was, in fact, 12,500 below that of the careful estimate of the city’s chief engineer. If the price was unreasonable, or if any tona fide offers were made to build the bridge for a considerably less sum, it was open to the complainant to give the proof thereof. Courts do not look with favor upon injunction bills to restrain or hinder the completion of public improvements, unless there is proof of fraud. Such fraud may perhaps be inferred where the price is exorbitant.

It is urged that the specifications are not sufficiently definite. The charter, section 9, tit. 12, requires the board of public works to prepare, ‘ ‘ so far as necessary, plans and specifications for such work or improvement.” Its action in this matter is final when its members have exercised their best judgment, and have prepared plans and specifications which bidders can understand and act upon intelligently. The law does not give to courts the power to substitute their judgment for the honest judgment of the board. Only when such board has acted fraudulently, or, perhaps, has ignorantly prepared plans and specifications which are clearly insufficient to form a basis for intelligent and fair bidding, can courts interfere.

The authority granted by the board of supervisors, in 1891, to the city to construct a bridge, is sufficient to cover the construction of the present bridge. Where the board of supervisors has once granted such permission, and the bridge is completed in accordance therewith,— qucere, whether any further permission is required, either to repair the old bridge, or to erect a new one in its stead, so long as all the facilities for the use of the stream and the highway are retained to the public. Moreover, this is a question which does not concern the complainant. So long as the public authorities are content, it is no concern of his whether the supervisors have taken the proper action.

The decree is affirmed, with costs.

The other Justices concurred.


author: Per Curiam.

text:
    REID v. WAYNE CIRCUIT JUDGE.
    1. Appeal Bond — Payment oe Decree.
    An appeal bond in chancery does not secure the payment of a decree which is otherwise secured. Kennedy v. Nims, 52 Mich. 158.
    2. Same — Stare Decisis..
    The former decision that an appeal bond does not secure the payment of a decree otherwise secured, even if wrong, will not be overruled, as it would impose upon those who became sureties, relying upon it, obligations from which they had a right to suppose themselves exempted.

      Mandamus by James Reid and others to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order requiring an excessive appeal bond.
    Submitted November 18, 1902.
    (Calendar No. 19,644.)
    Writ granted March 12, 1903.

      Tarsney & Fitzpatrick, for relators.

      C. A. Kent, for respondent.
   Per Curiam.

This is an application for a mandamus to compel respondent to set aside an order fixing the penalty of an appeal bond at the sum of $30,000. Relators are the defendants in a chancery suit brought by Edmund Hall. The court below rendered a decree finding that relators were indebted to said Hall, on an accounting, for a large sum of money, and that this indebtedness is secured by certain property. It decrees that this property shall be sold, the proceeds applied to reduce said indebtedness, and declares that said Hall is entitled to a personal decree against the defendants for the balance. The court below, proceeding upon the ground that the appeal bond secured the payment of said balance, made the order complained of, and refused to approve a bond proffered by relators for the penal sum of $1,000.

Kennedy v. Nims, 52 Mich. 153 (17 N. W. 735), decides that the appeal bond does not secure the payment of such balance. While the reasoning upon which this decision was based was disapproved by this court in the case of Richardson v. Richardson, 82 Mich. 305 (46 N. W. 670), its effect as an authority, on the facts involved, has never been shaken. Indeed, in Richardson v. Richardson this court recognizes that the appeal bond does not secure the payment of a decree which is “otherwise secured.” Respondent’s counsel contends that Kennedy v. Nims was incorrectly decided, and should be overruled. We must decline. Even if that case was not properly decided, the rule of stare decisis should apply. To overrule it would impose upon those who became sureties, relying upon said decision, obligations never voluntarily incurred, and from which they had a right to suppose themselves exempted.

The writ of mandamus must issue as prayed.