text:
    CLEVELAND CO-OPERATIVE STOVE CO. v. MALLERY.

    Sale—Goods Ordered in Name of Third Party—Liability-Evidence.
    The testimony of one to whom defendant had sold his business that he spoke to defendant about ordering goods in his name, and was told that it would be all right, together with evidence that invoices of shipments made in his name were mailed to the defendant, and received by him without objection, is sufficient to sustain a verdict against him for the price of the goods.
    Error to Wayne; Carpenter, J.
    Submitted November 19, 1896.
    Decided December 1, 1896.

      Assumpsit by the Cleveland Co-operative Stove Company against Ambrose S. Mallery for goods sold and delivered. From a judgment for plaintiff, defendant brings error.'
    Affirmed.
    The defendant, a merchant in the city of Detroit, had for some years prior to September, 1892, purchased stoves of the plaintiff, and received credit therefor, in the usual course of trade. During that month, the precise date not being fixed, the defendant sold out his stock and business to one Lamb, who had been for some time a clerk in his employ. Lamb was without means, and, to secure defendant for the purchase price, gave him a chattel mortgage upon the stock of goods and his household furniture. Lamb ordered goods of the plaintiff in the name of the defendant. Plaintiff brought suit to recover a balance of $78.13. The sole question submitted to the jury was, did defendant authorize Lamb to purchase goods in his name ? The jury found for the plaintiff. Defendant contends that the court should have directed a verdict for him, and insists that there was no evidence of such authority.
    The testimony on the part of the plaintiff tended to show that its traveling agent, in September, visited defendant, in his usual place of business, to solicit a further order; that defendant then informed him that he had sold out to Lamb; that he said to defendant, “Lamb has no money, and cannot buy;” that, after talking with Lamb at defendant’s request, he told defendant that he could'not trust Lamb; that witness said to defendant: “You have this thing all in your own hands. Why don’t you help him along, and buy some goods for him?” Defendant then signed an order for goods amounting to $100.05, which were shipped to him (defendant). Mr. Lamb testified that he had a conversation with defendant about ordering goods of plaintiff in defendant’s name, and that defendant said, “ Go ahead; it will be all right,” and that defendant told him he could have the use of his name; and that, acting upon this, he ordered the goods. It also appears that the goods were shipped to Mr. Mallery, and that invoices of shipment, together with the bill of lading, were mailed to him at the time of shipment. Mr. Lamb also testified that letters which came to the store directed to defendant were not opened by him, but were handed to defendant, who was in the store nearly every day. Defendant testified that he gave no such authority to Lamb; that the bill of goods above mentioned was ordered before the sale to Lamb was completed, and that the first knowledge he obtained that Lamb was ordering goods in his name was when he saw some stoves standing upon the sidewalk in front of the store, marked to him; and that on December 30, 1892, he wrote plaintiff that Lamb was not authorized to order goods in his name. After the receipt of this letter, no more goods were shipped.

      Franklin L. Lord, for appellant.

      Frank T. Lodge, for appellee.

       Rehearing denied January 16, 1897.

   Grant, J.

(after stating the facts). We are of the opinion that the case was properly submitted to the jury. The goods were shipped and invoices sent by mail to defendant, as was done in Heyn v. O’Hagen, 60 Mich. 150. There is evidence from which the jury might find that defendant received the invoices and made no objection. This, unexplained, would be evidénce of original authority, and, in connection with the testimony of Lamb, was important. Defendant does not testify what time elapsed between the date he saw the goods marked to him and the letter of December 30th denying the authority. We also think that the evidence of Lamb, if believed by the jury, is sufficient to sustain the verdict. If there were discrepancies in his testimony, it was the province of the jury to weigh them, and determine what the fact was, and how much credence they would give to his statement.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    FISH v. STOCKDALE.
    Constitutional Law—Title to Aot—Fisheries.
    Act No. 186, Pub. Acts 1893, entitled “An act to amend section 1 of Act No. 159, Session Laws of 1891, entitled ‘An act to regulate the taking and catching of fish in the inland waters of this State,’ approved June 24, 1891,” sought to extend the provisions of the earlier act, which was in fact entitled “An act to regulate the taking and catching of iisli in the inland lakes of this State,” to inland waters other than lakes. The title to the original act was correctly set out in the legislative bill upon which the amendatory act was founded. Held, that the last-mentioned act was unconstitutional, in that its object was not expressed in its title.

      Certiorari to Allegan; Padgham, J.
    Submitted April 28, 1896.
    Decided December 4, 1896.

      Mandamus by Fidus E. Fish, prosecuting attorney, to compel John B. Stockdale, a justice of the peace, to entertain a criminal complaint, and issue a warrant thereon. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Fidus F. Fish, in pro. per.

   Grant, J.

The respondent refused to issue a warrant upon a complaint made under Act No. 186 of the Public Acts of 1893, upon the ground of its unconstitutionality. The title of the act is as follows:

“An act to amend section one of act number one hundred fifty-nine, Session Laws of eighteen hundred ninety-one, entitled ‘An act to regulate the taking and catching of fish in the inland waters of this State,’ approved June twenty-fourth, eighteen hundred ninety-one.”

The title to the act amended reads as follows: “An act to regulate the taking and catching of fish in the inland lakes of this State.” There was no such act as the one described in the title to the amending act. The act of 1891 included lakes alone, and not other waters. The evident object of the amendment was to extend the statute so as to include other inland waters than lakes. An examination of the legislative journals discloses the fact that-a bill was introduced in the Senate, designated as “Senate Bill No. 316,” and entitled “A bill to amend Act No. 159, Laws of 1891, entitled ‘An act to regulate the taking and catching of fish in the inland lakes of this State.’” The bill was read the first and second times by its title, and referred to the committee on state affairs. Senate Journal, 399.

The title was defective, in that it did not express the object of the bill. Section 20, art. 4, Const. The title gave no notice to the legislators or to the people that the bill provided that the provisions of the original act should be extended to other subjects. The natural inference to be drawn from the title is that the proposed amendment affected only lakes. The title should have contained appropriate words showing that the object was to include other waters.

The decision of the court below that the act is unconstitutional is correct, and is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    CITY OF GRAND RAPIDS v. NEWTON.
    Municipal Corporations—Police Power—Disorderly Houses— Unreasonable Ordinance.
    A city ordinance providing that no person shall “permit drunkards, intoxicated persons, tipplers, gamblers, persons having the reputation or name of being prostitutes, or other disorderly persons to congregate, assemble, visit, or remain” in “his or her house, tavern, inn,- saloon, cellar, shop, office, or other residence or place of business,” is unreasonable, and beyond the power conferred upon the council to enact ordinances to prevent vice and immorality, to preserve the imblic peace and good order, and to prohibit and suppress the keeping of houses of ill-fame or for the resort of prostitutes, in that it is not limited in its application to places requiring police regulation, or to assemblages of immoral persons, and does not make knowledge of the reputation of t-lie persons so congregating or visiting, or an unlawful purpose on their part, an ingredient of the offense.

      Certiorari to superior court of Grand Rapids; Burlingame, J.
    Submitted October 6, .1896.
    Decided December 4, 1896.
    , Daniel F. Newton and James Donovan were convicted in the police court of the city of Grand Rapids of violating an ordinance of the city, and appealed to the superior court. On motion there made, the complaint and warrant were quashed and the respondents discharged, whereupon the city sued out a writ of certiorari.

    Affirmed.

      Henry J. FeTker and Harvey Joslin, for plaintiff in certiorari.

      Lombard & Hughes, for defendants in certiorari.

   Montgomery, J.

The charter of the city of Grand Rapids confers upon the common council authority to enact ordinances— -

“ To prevent vice and immorality, to preserve public peace and good order, and to prevent and quell riots, disturbances, and disorderly assemblages; * * * to prohibit and prevent any riot, rout, disorderly noise, disturbance, or assemblage in the streets or elsewhere in said city. * * * to prohibit, prevent, and suppress the keeping of houses of ill-fame or assignation, or for the resort of common prostitutes, disorderly houses, and disorderly groceries; to restrain, suppress, and punish the keepers thereof; * * * to provide for maintaining the peace, order, and good government of said city.”

Assuming to act under this authority, by section 2 of an ordinance approved July 5, 1887, it was enacted:

“ That no person shall permit any indecent, loud, or boisterous noise, or any fighting, quarreling, or disturbance, in or about his or her house, tavern, inn, saloon, cellar, shop, office, or other residence or place of business, nor permit persons to congregate therein to the annoyance or disturbance of citizens or others, or permit drunkards, intoxicated persons, tipplers, gamblers, persons having the reputation or name of being prostitutes, or other disorderly persons, to congregate, assemble, visit, or remain therein.”

The defendants were charged with a violation of this section, under a complaint alleging that they were keepers of a saloon in said city, and did then and there permit certain persons (naming them), having then and there the name and reputation of being prostitutes, to congregate, assemble, remain, and visit therein. The trial judge, on motion, discharged the respondents on the ground that the complaint states no offense. The city asks to have this order set aside, and that the respondents be placed on trial.

The complaint does not allege that the respondents had any knowledge of the reputation of these women, nor is knowledge of such reputation made an element of the offense by the ordinance. It is evident that the trial judge was of the opinion that this section of the ordinance is unreasonable, and beyond the power of the council to enact. We are of the same opinion. We do not hold that if the ordinance were limited in its operation to places of resort where prostitutes may be presumed to go for immoral purposes, like a liquor saloon, it may not be competent to exclude all having the reputation of being prostitutes, or that it may not be competent to require in such a case that the proprietor see to it, at his peril, that none having that reputation in fact congregate at or visit his place of business. This power to exercise stringent* regulation of the liquor traffic has been frequently recognized, and arises out of the necessities of the case. The courts recognize the fact that such places furnish facilities for unlawful conduct, and hence that regulation of such business is proper, and this court would hesitate to pronounce unreasonable stringent regulations based upon the necessity of control arising out of this condition. But the difficulty is that the ordinance in question is not limited in its application to such places of business, nor to assemblages of immoral persons. It is broad enough to render liable to its penalties a merchant at whose counter a tippler or gambler buys the necessaries of life. Indeed, it might render subject to its provisions those maintaining a reformatory home for inebriates or prostitutes. For, as before stated, knowledge of the reputation of the person visiting the house or place of business is not an ingredient of the offense, nor is any unlawful purpose on the part of the visitor required; and those amenable to the provisions of the ordinance are the owners or keepers of any house, tavern, inn, saloon, cellar, shop, office, or other residence or place of business. These provisions are plainly so broad as to render the ordinance unreasonable and beyond the power of the council, and, as we are not able to sever the provisions of this section, and to know judicially that those of the provisions which might lawfully be adopted would, by themselves, have been deemed proper, we feel bound to hold that the offense here charged is not created by any valid ordinance.

The judgment of the superior court is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    SOMERVILLE v. WABASH RAILROAD CO.
    Costs—Expense oe Obtaining Surety on Appeal Bond.
    Act No. 266, Pub. Acts 1895, entitled “An act relative to bonds, * * * and the acceptance as surety thereon of companies qualified to act as such, * * * and to the charging by fiduciaries of the expense of procuring sureties,” providing, inter alia, that the party entitled to costs in any action may include therein such reasonable sum as may have been paid to a surety company for executing any bond or other obligation in such action, does not authorize the taxation as costs of money paid by a party litigant to such company for signing an appeal bond, where the party does not occupy the relation of a fiduciary.
    Motion by the defendant in the case reported in 109 Mich., at page 294, for a retaxation of costs therein.
    Submitted June 30, 1896.
    Denied December 4, 1896.

      Alfred Bussell, for the motion.

      John Gf. Hawley, contra.

   Moore, J.

This is an application for a retaxation of costs on the grounds—First, that the clerk did not allow all that should have been allowed for printing the record and briefs; and, second, because an item of $10 paid to a surety company for signing the appeal bond was not taxed.

An inspection of the record shows that the. amount taxed by the clerk of this court for printing the record and briefs was all that the appellant was entitled to have taxed. It was fully equal to what printers generally charge for doing work of like character.

It is claimed that under the provisions of Act No. 266, Pub Acts 1895, the item of $10 should be taxed. The title of this act reads as follows:

“An act relative to bonds and other obligations with surety or sureties, and the acceptance as surety thereon of companies qualified to act as such, and the release of' such surety, and the safe depositing of assets for which such surety may be liable, - and to the charging by fiduciaries of the expense of procuring sureties, and repealing all laws in conflict therewith.”

There is nothing in the title of the act to indicate that money paid by a party litigant to a surety company for, signing an appeal bond could be recovered as taxable costs, where the party did not occupy the relation of a fiduciary. I do not think the item of $10 was properly taxable.

The motion is denied.

The other Justices concurred.


text:
    TOWNSHIP OF GREENFIELD v. NORTON.
    Highways—Encroachments—Equity Jurisdiction.
    ’ Equity will not, in the absence of special circumstances, entertain a bill to remove an alleged obstruction from a township highway, under the provisions of 2 How. Stat. § 6611, since an adequate remedy at law in such cases is afforded by 3 How. Stat. §§ 1371-1378.
    Appeal from Wayne; Lillibridge, J.
    Submitted October 9, 1896.
    Decided December 4, 1896.
    Bill by the township of Greenfield and Henry Lanco, highway commissioner, against Milton G. Norton, to compel the removal of an obstruction from a public highway. From a decree dismissing the bill on demurrer, complainants appeal.
    Affirmed.

      James H. Pound, for complainants.
   Moore, J.

Complainants filed a bill alleging the existence of a public highway through the township of Greenfield known as the “Grand River Road,” which road is described as having been in existence móre than 35 years. The bill states that it is 100 feet wide, and is one of the most important public roads in the township. It avers that defendant has erected and now “maintains in said public highway a purpresture in the shape of a public barn;” that said barn occupies a portion of said highway; and that defendant’s use of said road, which is greatly traveled, is unlawful. It also states that the highway commissioner served a written notice upon the ■defendant to remove the barn, and that he declined to do so, and claimed he had some right to the land. The bill prayed for a decree requiring the defendant to remove the barn, and for a perpetual injunction to restrain the replacing of any obstructions in said road upon defendant’s part. The defendant interposed a general demurrer to the bill. A decree was entered dismissing the bill of complaint, from which decree the complainants appeal.

We are not favored with a brief from the defendant* so that we do not know what his contention is. The complainants insist that they have a right to maintain this bill under 2 How. Stat. § 6611, which reads:

“Said circuit court in chancery shall also have jurisdiction and authority to :|hear and. determine all cases of' encroachments upon the public highways, streets, and public alleys in organized townships, incorporated villages, and cities, in this State. Such suits may be instituted in the corporate name of such townships, villages, and cities.”’

Five days after the section just quoted became a law* the legislature passed the highway act of 1881, which did not affect cities and villages, but provided very fully for highways in townships, and provided remedies for encroachments where none had existed before. The act of June 8th did not in terms repeal the act of June 3d, and it is insisted here that it did ‘ not repeal it by implication. 3 How. Stat. §§ 1371-1378, treats in detail of obstructions to highways, and of encroachments thereon, of the notices that shall be given in cases of obstruction, and how actions shall be brought. It provides for service of process, and gives the right of trial by jury when demanded, and the right to an appeal to the circuit court, and a right of trial by jury there. It also provides that the encroachment may be removed by the commissioner within 10 days after final judgment.

These two statutes were construed by Justice Campbell in the case of Township of Lebanon v. Burch, 78 Mich. 641. In that case, after reciting the various, provisions of the statute, the learned justice said;

“ This furnishes complete and specific relief, in connection with trial by jury, to which the landowner is constitutionally entitled, and leaves no occasion for resort to equity, unless under some possibly peculiar circumstances, which, cannot generally exist.”

Continuing the discussion, he said:

Under the highway law, no township officer, except the commissioner, has 'any right to meddle with highway matters. His duty is, when he thinks a road is encroached on, to satisfy himself in some responsible way, which will bear the test of a lawsuit, where the highway lines are, and how they are encroached upon. * * * The bill and proceedings in the present case are entirely repugnant to the rules which have always been observed in regard to jurisdiction and procedure. In the first place, there is not only an adequate remedy at law, but one devised for the very purpose, and made obligatory in terms, and better adapted to do justice; * * * and in this connection it should be noted that, by the settled practice in England and here, a bill cannot be filed to take into a court of chancery jurisdiction over a controversy of a legal nature, without a verification of such facts as show its propriety.”

Applying the language of this able jurist to the case under consideration, it seems to be clearly shown that the bill of complaint was properly dismissed. The complainants have an adequate remedy at law, and no facts are stated in the bill indicating the necessity of the court of equity taking jurisdiction.

The decree of the court below is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    NOLAN v. SWIFT.
    1. Real-Estate Agents—Termination or Contract.
    The employment of a broker to procure a purchaser for land, which is indefinite as to time, cannot be terminated by the owner without notice to the broker.
    2. Same—Right to Commission—Evidence.
    Evidence that defendant, knowing that plaintiff was trying to make a sale of defendant’s land after the expiration of plaintiff’s option thereon, wrote him that, unless he effected a sale within a certain time, all obligation on defendant’s part in that regard should cease, and that plaintiff, after the expiration of the time mentioned, but before receipt of the letter, secured a purchaser, with whom defendant consummated a sale, is sufficient to establish the existence of an understanding between the parties whereby plaintiff was to find a purchaser for the land, and a consequent promise by defendant to pay plaintiff the reasonable value of his services.
    Error to Wayne; Carpenter, J.
    Submitted October 20, 1896.
    Decided December 4, 1896.

      Assumpsit by John E. Nolan against Aaron C. Fisher for commissions on the sale of real estate. Defendant died pending the trial, and the cause was revived in the names of his executors, Edward Y. Swift and Charles B. Gray. There was a judgment for plaintiff, and defendants bring error.
    Affirmed.

      Gray & Gray (John D. Oonely, of counsel), for appellants.

      T. E. Tarsney and W. W. Wicker, for appellee.
   Hooker, J.

Fisher and Seligman owned certain city lots in common, adjoining other real estate owned by Fisher in the city of Detroit; and Fisher gave to the plaintiff, Nolan, an option to purchase his interest in both for $450,000, for the period of 30 days. This writing is alleged to have been made on December 8, 1891, and on January 9, 1892, it was extended in writing until February 1, 1892. There is nothing to show that it was extended longer, unless it be a letter from Gray, Fisher’s son-in-law, written by Fisher’s direction and dictation on February 5th. It is as follows:

“February 5, 1892.

“Jno. E. Nolan,

“E. Saginaw.

“Dear Sir: I am requested by Mr. A. C. Fisher to notify you that unless a sale of his entire interest or division is made with Mr. J. Seligman or others before Saturday night, 6th inst., all obligation on his part or extension of option with you for sale of the property (his interest in Fisher Block and adjoining property) will cease.

“Chas. B. Gray.”

On February 5th, being the same day that this letter was written, Nolan, who had been for several days endeavoring to persuade Seligman to agree on a division and purchase of the property, succeeded in obtaining a promise—presumably oral—from Seligman that he would take Fisher’s individual property and a portion of that held in common, giving to Fisher the remainder of the property held in common, and $100,000. Nolan thereupon went to Detroit, and on Monday following (being the 8th of February) Seligman followed, and had an interview with Mr. Gray, who is shown to have been the authorized representative of Fisher, in the presence of Nolan and others and one Doyle, who was present in the interest of Seligman. Mr. Gray then and there said the price was $125,000, instead of $100,000; and Doyle testified that Seligman said he would not pay it, and the deal ended then and there, and that the next day he (Doyle) went to the house of Fisher, who was sick, and, after working all-day with him, prevailed on him to accept $100,000, and the deal was closed upon the terms talked at Saginaw between Seligman and Nolan. This action is brought by Nolan to recover a commission of 2 per cent. on the amount involved in the transaction (that being the usual commission charged on sales of real estate in Detroit), and he received a judgment for the amount claimed. The case is before us on error assigned upon the chai-ge.

Fisher died before the case was tried, and the plaintiff gave no testimony as to what occurred between them. In addition to the testimony stated, Gray testified that he knew, at the time he wrote the letter of February 5th, that there was an arrangement between Nolan and Fisher, and that what Nolan was doing he was doing for Fisher, and that he was negotiating with Seligman.

The charge contained the following:

“ Gentlemen of the jury, if the plaintiff was authorized by the defendants’ testator to procure a purchaser in Mr. Seligman, by dividing this land, and if, before that authority was revoked, he brought about a division satisfactory to Mr. Fisher, then he is entitled to be compen-, sated for what his services were reasonably worth. Now, we have no evidence of what the arrangement between Mr. Nolan and Mr. Fisher was. So far as the writings were concerned, that expired bn the 1st of February. They do not control this transaction. Was there an arrangement made between them which continued after the 1st of February, and was it in existence on the 9th day of February ? The only evidence that there existed any such arrangement is contained in this letter of February 5th, the terms of which are entirely familiar to you. I will read that letter to you, because it is the only evidence of the existence of any agreement between them after that date,—the 1st of February. It is dated February 5, 1892:

“ ‘John E. Nolan, Esq.,
“ ‘East Saginaw.
‘Dear Sir: I am requested by A. G. Fisher to notify you that unless a sale of his entire interest or division is made with J. Seligman or others before Saturday night, the 6th inst., all obligation on his part or extension of option with you for sale of the property (his interest in Fisher Block and adjoining property) will cease.
“ ‘Very truly yours,
“ ‘Charles B. Gray/

“Now, I say to you that the only evidence in this case of any arrangement between these parties exists in that letter, because Mr. Nolan cannot testify, and does not assume to testify, to any arrangement, his mouth being stopped by the statute. Mr. Fisher cannot testify, because, of course, he is not here. Now, was there such an arrangement? That is for you to say. It is for you to say what inference is to be drawn from this letter. If there was no arrangement, or if that arrangement ended on the 6th of February, 1892, there could he no recovery. ' So that you must find, in order to render a verdict for the plaintiff, that there was an arrangement after the 1st of February, continuing up to the time this deal was consummated, which the testimony shows was the 9th of February. If there was such an arrangement, was it revoked? The testimony is undisputed that on the 5th of February this letter was written and mailed, but I charge you that a revocation would not be conclusive unless this letter, or knowledge of this letter, or knowledge of the revocation, in some way reached Mr. Nolan before this deal was made. The testimony of Mr. Nolan is that this letter did not reach him until Thursday after the deal was consummated, on Tuesday. The important question in this case for you to determine is whether, on Saturday night, Mr. Nolan was here in Detroit, and had this interview with Mr. Gray, and Mr. Gray told him the contents of this letter, and showed him the letter in the letter-book. Mr. Gray testifies he did do that, and Mr. Nolan testified that he did not do that. Now, if, on that occasion, Mr. Nolan was notified of the revocation of his authority, he cannot recover in this case, because, in my judgment, the arrangement which existed (assuming an arrangement to exist) was one which Mr. Fisher might have terminated at any time. I do not agree with counsel that it was an arrangement which could not be terminated except by a reasonable notice. I charge you, as a matter of law, that it was an arrangement which might be terminated at will. Either party might terminate it as he chose. If, therefore, on the morning of the 6th of February, Mr. Nolan was notified of the termination of his authority, he cannot recover in this case. That, really, as counsel have argued to you on both sides, is the vital question submitted to you. If you find, however, that Mr. Nolan had an authority to procure a purchaser, and that he never had any notice of the revocation of it until after the deal was made, on the 9th of February, then your verdict should be for him; but if, on the other hand, you find either that he had no authority, or that the authority was revoked by notice which he received on the morning of the 6th, then your verdictfmust be for the defendants.”

The effect of this instruction was that Mr. Nolan might recover if the jury should find that an arrangement for Nolan’s services existed after February 1st, and up to and including the time when the deal was consummated, and that Nolan’s authority to act was not terminated by Gray’s letter, unless it was brought to his notice, and that the only evidence that there was any arrangement at ail was contained in the letter. Under this charge, we must conclude that the jury found that the writings did not warrant a verdict based upon the option, that plaintiff had no knowledge of the contents of the letter, and that some other arrangement than the option existed previous to and on February 5th,—presumably, an oral understanding that Nolan should continue his efforts to effectuate a trade or sale to Seligman; and, if the circumstances proved warrant the inference of such an understanding, the law will imply a promise to pay for such services their reasonable value. -

In Beach on Contracts we find this subject discussed. The learned author says:

“The term ‘implied contract’ is generally used to denote a promise which the law, from the existence of certain facts, presumes that a party has made. An implied contract is where the intention of the parties may be gathered from their acts and from surrounding circumstances, as distinguished from an express contract, where a party stipulates in direct terms, verbally or in writing. Implied contracts, it has been said, are such as reason and justice dictate, and which the law presumes that every man has contracted to perform, and, 'upon this presumption, makes him answerable to such persons as suffer by his nonperformance. But all true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wills. When this intention is expressed, the contract is called an e express ’ one. When it' is not expressed, it may be inferred, implied, or presumed from circumstances as really existing, and then the contract thus ascertained is called an ‘ implied ’ one. Both express and implied contracts are founded upon the actual agreements of the parties, the only distinction being in the character of the evidence by which the contract is proved. An express contract is proved by an actual agreement; an implied contract, by circumstances and the general course of dealing between the parties. ‘A great mass of human transactions depends upon implied contracts,— upon contracts which are not written, but which grow out of the acts of the parties. In such cases the parties are supposed to have made those stipulations which, as honest, fair, and just men, they ought to have made.’ Marshall, C. J., in Ogden v. Saunders, 12 Wheat. 213, 341.” 1 Beach, Cont. § 639, and note 1.

Again Mr. Beach states that—

“Where one person renders services for another, which are known to and accepted by him, the law ordinarily implies a promise to pay therefor.” 1 Beach, Cont. § 642.

Again, in section 650, the following language is used •

“Where there is no relationship between the parties, and one accepts and retains the beneficial results of another’s services, which he had no reason to suppose were gratuitous, and which he could or not accept at his option, the law will imply *a previous request for the services, and a promise to pay what they were reasonably worth.”

See authorities cited in note.

In 1 Add. Cont. 22, the author says:

“ The intention of the parties to any particular transaction may be gathered from their acts and deeds, in connection with the surrounding circumstances, as well as from their words; and the law therefore implies, from the silent language of men’s conduct and actions, contracts and promises as forcible and binding as those that are made by express words, or through the medium of written memorials.”

While we must admit the correctness of the contention that, if the only evidence of the arrangement was‘to be found in the letter, the circuit judge should have construed it, this contention loses its force, because the judge was in error in so stating. The contract which the plaintiff was contending for was not one which, like the option, was to give him, or any one else, a right to purchase, and which, therefore, was void unless in writing. It was one which called for the plaintiff’s services in finding a purchaser on satisfactory terms, and, if made, was performed when such purchaser was found and the premises were conveyed. The option expired, according to its terms, on February 1st. Not only does the testimony fail to show that it was extended, but Mr. Gray testified that he knew of negotiations for a division subsequent to that time, under an arrangement between Fisher and Nolan. The letter is not limited to the option, but was evidently intended to cover all arrangements. Nolan brought Seligman to Detroit to effect the deal which was finally consummated, and Gray had an interview with him and Nolan about it, at which time he refused to accept the sum of $100,000 as a basis for a trade. He says he then and there declared the deal off; but the matter was followed up with Fisher, and the trade was consummated. These facts are uncontradicted, and were sufficient to warrant an instruction that Fisher and Nolan had an understanding that'Nolan should bring about a deal with Seligman, for which he should receive compensation, and therefore the instruction appears to have been harmless error. The fact that, after the termination of the written contract or option, Nolan was still trying to effect a deal with Seligman, is shown by the testimony of Gray, and by the letter dictated by Fisher, who was willing to extend the time until February 6th, or, as counsel would say, desired to place a limit upon or show that he wished to place the matter beyond controversy. Whether the contract is to be considered terminated by the letter might depend upon two things, viz.: (1) Whether it could be terminated without actual notice to Nolan. (2) Whether the conduct of the parties after the letter was written did not manifest an intention to recognize and accept the benefit of the labors of Nolan ■under it, notwithstanding the writing of the letter. The ■court instructed the jury that the contract could not be terminated without actual notice, and this is alleged to hiave been erroneous. We must bear in mind that this ■question does not involve the validity or invalidity, or, more accurately speaking, perhaps, the binding force upon the principal, of some act or conveyance done or made, in the representative capacity of agent, by Nolan. There is nothing to indicate that any one supposed that Nolan had made a contract with Seligman which bound Fisher. What,, is claimed is that he produced a purchaser satisfactory to Fisher, under a contract which could, at the most, be terminated by notice. We think there is a radical difference between the termination of an agency and a contract, and that a contract might be made that would not be terminated without notice, though an agency that might be involved therein might be. Clark, Cont. § 310. This being so, this record shows that the jury found (1) that a contract was made; (2) that it was not terminated by the letter; (3) that plaintiff produced a purchaser, which Fisher accepted.

We think these facts justify the verdict, and the judgment is therefore affirmed.

The other Justices concurred.


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    OSTRANDER v. BOARD OF SUPERVISORS OF GRATIOT COUNTY.
    Cities—Rein corporation—'Ward Supervisors—Representation on County Board—Assessors.
    The proviso to section 1, chap. 31, of the general act for the incorporation of cities of the fourth class (Act No. 215, Pub. Acts 1895), that any incorporated city which shall become reincorporated under the act, having an assessor, “may”' retain its present method of assessing property and levying . taxes, and that the assessor in office when the act takes effect “shall” remain in office until the expiration of his-term, is permissive merely, and cities not availing themselves of the permission are entitled, under chapter 5, § 2, to elect supervisors in the several wards of the city, who, under the provisions of chapter 7, § 26, are to represent their respective wards upon the board of supervisors.

      Certiorari to Gratiot; Daboll, J.
    Submitted November 17, 1896.
    Decided December 4, 1896.

      Mandamus by Stephen Ostrander and others, supervisors of the several wards of the city of St. Louis, to-compel the board of supervisors of Gratiot county to admit relators to seats as members of said board. Respondent brings certiorari to review an order granting the writ.
    Affirmed.

      T. W. Whitney, for relators.

      W. A. Leet and George P. Stone, for respondent.
   Montgomery, J.

' The village of St. Louis became incorporated as a city by and under Act No. 211, Local Acts 1891. By this act the city was divided into four wards, and it was provided that the city should elect a city assessor, and that such assessor should constitute the representative of the city on the board of supervisors. The general act for the incorporation of cities, being Act No. 215, Pub. Acts 1895, provides for the reincorporation of all cities previously incorporated of a certain class, unless 50 or more of the qualified voters of an existing city shall petition for an election to determine whether the city shall remain incorporated under its previous special act. No such action was taken by the city of St. Louis, and Act No. 215 therefore became operative. In the spring of 1896 the city elected the several relators- as supervisors of the respective wards of said city. Relators appeared at the June session of the board of supervisors, and claimed the right to a seat upon the board. Their claim was rejected, and thereupon they instituted a proceeding by mandamus in the circuit court of Gratiot county to have their claims recognized. After a hearing, such mandamus was granted, and the respondent has sued out a writ of certiorari to this court to review the action of the circuit judge in granting the mandamus.

The question turns upon the construction of three sections of Act No. 215, being section 26 of chapter 7, section 1 of chapter 31, and section 2 of chapter 5. Section 26 reads as follows:

“The supervisors of the several wards are authorized to perform the same duties in relation to the assessment of property and levying taxes for all purposes in their respective wards as are imposed by law upon supervisors elected in townships, and they shall have the like powers and perform the like duties in all other respects as supervisors so elected, except as herein otherwise provided, so far as such powers and duties are required to be exercised and performed in their wards. They shall represent their several wards in the board of supervisors of the county in which the city is located, and shall have all rights, privileges, and powers of the several members of such board of supervisors: Provided, that any city now having a greater representation upon the board of supervisors of any county than is provided by this act shall continue to have such representation as it may have at the time of such reincorporation, and, if the office of any officer now representing any such city upon the board of supervisors is abolished by this act, the council of such city may annually appoint some suitable person, being a resident elector of such city, to represent the city upon the board of supervisors in the place of such officer whose office has been abolished.”

The provisions of this section would seem to be clear and unambiguous, when construed in connection with section 2 of chapter 5, which provides that “in each ward a supervisor * * * shall be elected.” Section 26 defines the duties of such supervisors, and in terms provides that they shall represent their several wards on the board of supervisors of the county. The only proviso is that any city now having a greater representation upon the board of supervisors of any county than is provided by this act shall continue to have such representation. As this city had not previously a greater representation, it is clearly not within the terms of the proviso, unless the language of the proviso is to be controlled by other provisions of the act.

It is contended that the proviso to section 1 of chapter 31 should be construed in connection with section 26 of chapter 7. That proviso is contained under the title, “Assessment and Collection of Taxes,” and follows a provision requiring supervisors to make a complete assessment, etc., and is as follows:

“ Provided, that any city now incorporated, and which shall become reincorporated under this act,“now having an assessor for the assessment of property and the levying of taxes, such city may retain its present method of assessing property and levying taxes, and such assessor in office at the time this act shall take effect shall remain in office until the expiration of the term for which he was appointed or elected, and until his successor shall have been appointed and qualified.”

We' think this latter provision is merely permissive, and that, notwithstanding this proviso, cities incorporated under Act No. 215 are entitled to elect supervisors in the various wards of the city, as authorized by said act, and that there is no fair construction of any provisions of the statute which leads to any other result.

The order of the circuit judge will be affirmed.

Long, 0. J., Grant and Moore, JJ., concurred. Hooker, J., did not sit.


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    BRYAN v. FRACTIONAL SCHOOL DISTRICT NO. 1 OF SHELBY AND STERLING TOWNSHIPS.

    1. Schools and School Districts — Teacher’s Certificate — Validity—Parol Evidence.
    A teacher’s certificate issued by the county board of school examiners may be impeached by evidence that it was changed by one who was secretary of the board when it was issued, after his retirement from office and removal from the county, so as to add one year to its term; and this even though the statute (Act No.'147, Pub. Acts 1891, § 6) provides that a certificate of the grade of that in question shall be good for the extended period.
    2. Same.
    Whether such a certificate, valid on its face, can.be shown to have been issued without such a previous examination as the law requires,—queere

    8. Same—Validity of Contract.
    Under 2 How. Stat. § 5065, providing that no contract to teach school entered into with any person not holding a legal certificate of qualification then authorizing him to teach shall be valid, a contract so made cannot constitute the basis of a recovery by such person in the event of his discharge before the expiration of the period for which he was employed.
    Error to Macomb; Vance, J., presiding.
    Submitted November 10, 1896.
    Decided December 4, 1896.

      Assumpsit by Will R. Bryan against fractional school district No. 1 of the townships of Shelby and Sterling to recover salary as teacher. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Frank P. Monfort (Henry M. Cheever, of counsel), for appellant.

      Canfield & Spier, for appellee.

       Rehearing denied January 12, 1897.

   Montgomery, J.

Plaintiff sued to recover his salary as a teacher, under a written contract made with the district board of the defendant district, by which he engaged to teach for a term of 10 months, commencing September 3, 1894, at a salary of $80 per month. Plaintiff taught 7 months under this contract, and was paid his salary for this time. He was then discharged, and, after awaiting the expiration of the 10 months, he brought this suit to recover the salary for the remaining 3 months. Among the defenses urged by defendant was one that plaintiff was not a qualified teacher in Macomb county. The plaintiff opened up this subject in his main case, and, at the conclusion of his testimony, without requiring the defendant to enter upon its other claimed defenses, the learned circuit judge directed a verdict for the defendant.

The undisputed testimony showed that plaintiff had no teacher’s certificate issued by the commissioner of schools of Macomb county, but it appeared that, prior to August 2, 1888, plaintiff was examined by the county board of school examiners of Lenawee county, and was granted a second-grade certificate, good for two years, and expiring August 2, 1890. It appeared that, after this, he submitted to no public examination, as required by law, but that, on the 6th of August, 1891, he applied to the several members of the board of school examiners of Lenawee county, and received what was called a “first-grade certificate,” which, on its face, certified that he (plaintiff) was deemed qualified to teach in any school district in the State for three years from date. It also appeared that at no time had the plaintiff taken an examination upon all the subjects as to which an examination was required to entitle an applicant to a first-grade certificate. It appeared that, subsequently, this certificate, issued August 6, 1891, was sent to E. A. Wilson, who, at the date of its issue, was secretary of the board of examiners of Lenawee county, but had, in the meantime, retired from office and removed from the county, and was so changed by him as to make it expire four years from its date, instead of three, as it was first written. The certificate, as thus changed, was filed with] the school commissioner of Macomb county.

Numerous questions are discussed in the brief of appellant, which we deem it unnecessary to consider at length, for the case must turn upon two questions: First, whether the plaintiff had a valid certificate, in force during the term covered by the contract with the district; and, second, if it be determined that he had not, whether this is a defense to his action for damages. We have no hesitancy in saying that the certificate actually filed with the commissioner of schools of Macomb county was invalid. It was made to cover the period fixed by this contract by an unauthorized change made by the former secretary of Lenawee county after retiring from his office. Not only is this true, but, when it is suggested that the term for which the board was authorized to grant a first-grade certificate, under the law in force in 1891, was four years, the answer is that the board did not, in fact, grant a certificate for that period, and, when it is attempted to amend the certificate, it transpires that no such examination was had as justified the issue of a certificate at all. People v. Howlett, 94 Mich. 165. We need not determine the question whether, if the certificate had been in form for four years, it would have been competent to impeach the document by showing that there had been no such public examination as the law requires. It is enough, for the purposes of this case, to say that a purported certificate can be shown' to have been signed by one not in office, under circumstances where, if there was an absence of good faith, the transaction would amount to a forgery. In saying this, we do not wish to reflect upon Mr. Wilson, the secretary who signed the certificate, as we have no doubt that he may have acted in perfect good faith, although without authority.

2 How. Stat. § 5065, provides that no contract with any person not holding a legal certificate of qualification then authorizing such person to teach shall be valid. The question here presented is not at all analogous to that before the court in Crane v. School District, 61 Mich. 299, or in Holloway v. School District, 62 Mich. 153, where the question related to the informality in the execution of the contract. But the alleged contract in this case was, under the facts as they existed, prohibited by law, and cannot be made the basis of a recovery. See Goose River Bank v. Willow Lake School Tp., 1 N. Dak. 26; Hosmer v. School District, 4 N. Dak. 197.

The judgment will be affirmed.

The other Justices concurred.


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    MARTIN v. WAYNE CIRCUIT JUDGE.
    Costs—Term Fees.
    The right of the prevailing party under the express provisions of 2 How. Stat. § 9004, to a term fee for each term at which the cause was regularly placed on the calendar of the circuit court, and not reached, is not subject to an exception as to terms at which it was obviously improbable that the cause would be reached.

      Mandamus by Letitia Martin, administratrix, etc., to compel Willard M. Lillibridge, circuit judge of Wayne county, to tax certain term fees.
    Submitted October 20, 1896.
    Granted December 4, 1896.

      Frank T. Lodge, for relator.

      James H. Pound, for respondent.
   Montgomery, J.

The question presented by the return in this case is whether the prevailing party in a suit at law is entitled, as matter of right, to a term fee for each term at which the cause was regularly placed upon the calendar of the circuit court, and not reached. The circuit judge was of the opinion that no term fee should be taxed for terms at which it was apparent, from the nature of the business of the court, that the cause could not be reached. It is difficult to see how this fact could be made clearly apparent by the condition of the calendar. It might be obviously improbable that a cause would be reached, but it could not be certainly known to litigants. The statute makes no such exception, but provides a term fee for every circuit or term at which a cause is regularly on the calendar, and not reached, or is postponed. -2 How. Stat. § 9004. The relator was entitled to tax for each term at which the cause was regularly noticed and placed upon the term calendar.

The writ will issue as prayed.

The other Justices concurred.


author:
Gbant, J.
      Hooker, J.

text:
    STEVENS v. CITY OF MUSKEGON.

    1. Statute of Frauds—Municipal Grant—Evidence.
    Plaintiff presented a written petition to the mayor and common council of defendant city, asking permission to construct a private sewer in some of the public streets, describing specifically the termini of the proposed sewer, the streets in which it was to be placed, and its exact location therein. The council referred the petition to a committee, with power to act. Thereafter a bond was furnished by the plaintiff, conditioned for the proper performance of the work of constructing the sewer, and such bond was accepted and approved by the proper officers. Held, that there was sufficient written evidence of a contract, granting to the plaintiff the use of the streets, to satisfy the statute of frauds. Hooker, J., dissenting.
    2. Municipal Corporations—Private Sewer—Police Power— Vested Rights.
    Although a city which grants to an individual by a contract in writing the privilege of constructing a private sewer in its streets, with the right to the builder to charge abutting owners for connecting therewith, may superintend the construction of the sewer, see that connections are properly made, and regulate its use so that other citizens shall not be injured, the builder obtains by such grant a vested right, which cannot . be unreasonably interfered with.

      8. Same—Governmental Functions—Remedies.
    A city council, in passing and enforcing an ordinance which interferes with the rights of the proprietor in a private sewer constructed by authority of the council in the public streets, is in the exercise of its governmental functions, and hence the city is not liable to such person in an action at law for the damages sustained by reason of such action, the proper remedy being a proceeding to restrain an unlawful interference with vested rights.
    Error to Muskegon; Russell, J.
    Submitted December 4, 1895.
    Decided December 9, 1896.
    Case by Washington C. Stevens against the city of Muskegon for a wrongful interference with his rights under a municipal grant. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    When the plaintiff had rested his case, the court, upon motion, directed a verdict for the defendant. Several reasons for the motion were assigned, but upon which one the court directed the verdict does not appear. We can therefore only determine the rights of the parties from the case as made by the plaintiff. On August 13, 1884, the plaintiff presented a written petition to the mayor and common council of the defendant city, asking that he be granted a permit, the right of way, and privilege to lay a 12-inch sewer in some of the streets and alleys of the city. The petition specifically described the termini of the sewer, the streets in which it was to be placed, and the exact locality in the streets. By the action of the council the petition was referred to the sewer committee, with power to act. A bond was given September 11, 1884, to the city, executed by the plaintiff with two sureties, conditioned that he “should replace the streets in as good condition as they then were after constructing and building this sewer, and should keep the city free from all damages, costs, and expenses by reason of damages that might re-suit to any individual or person by reason of the tearing up of any alleys or streets during its construction.” This bond was approved by the chairman of the sewer committee, and filed in the proper city office. The sewer was constructed under the supervision of the sewer committee. On May 29, 1885, plaintiff presented another written petition to the council praying for permission to extend his sewer, describing streets and localities as specifically as before. This was likewise referred to the same committee, with power to act, a bond of like character was filed, and the sewer constructed. May 27, 1885, the committee on sewers made a report recommending the adoption of the Waring system of sewerage. Subsequently other petitions were presented to the com- ' mon- council by resident lot holders asking permission to lay sewers from their property to connect with the Stevens sewer. These petitions included one from the school board of the city and another from the board of supervisors of the county. These were granted, and were evidently regarded as a part of the plaintiff’s sewer. It was evidently understood that he was to construct them. He gave bonds of like character with the one above described, and constructed the sewers at his own expense. In this work he expended about $20,000. It appears that there was great need of a sewer to protect the health of the city. One hundred cesspools, which had been nearly or quite full, were drained into it. Its outlet was in Lake Muskegon. The lot owners paid plaintiff for the use of the sewer. One Delano had made connection with this sewer under an agreement with plaintiff, and for some reason the common council ordered it taken up. He thereupon, February 3, 1890, presented a petition to the council, setting forth in full his written contract with plaintiff, and praying that he be granted the immediate right to connect with plaintiff’s sewer. This was referred to a committee, which made a report recommending that the petition be granted upon condition that the work should be done under the city’s supervision, which report was adopted. After plaintiff’s sewer was constructed, it was assessed to him as his property, the tax on which one year was $185.20. Plaintiff had complied with all the requirements of the city in constructing this sewer, and no complaint appears to be made that the work was not properly done. In fact, it was done under the direction of the mayor or of the committee. May 23, 1890, the common council adopted an ordinance prohibiting any person from laying, causing to be laid, or assisting in laying any sewer in any public street or alley of the city, or to connect any premises with any private sewer laid in any street or alley, without first obtaining permission from the common council, and provided a penalty by fine and imprisonment for so doing. After the passage of this ordinance, plaintiff was proceeding to make connections with sewers from adjoining lots, when he was prevented by the city, through its police force, and was arrested. This suit was planted upon the theory of damage to the plaintiff’s property by the action of the council, and the consequent right of recovery.
    P. W. Niskern (Stephen H. Clink and Kingsley & Kleinhans, of counsel), for appellant.

      H. J. Hoyt (William E. Hoyt, of counsel), for appellee.

       Rehearing denied January 12, 1897.

   Gbant, J.

(after stating the facts). If the plaintiff has not become vested with any property rights which courts should protect, it must be in consequence of some inflexible rule of law. The statute of frauds is invoked as imposing such a rule. If the plaintiff’s right rested in parol, it might be held that it was such an interest in land that it could not be acquired by estoppel under the decisions of this court. Huyck v. Bailey, 100 Mich. 223; Wood v. Railroad Co., 90 Mich. 334, and authorities there cited. Courts are not in harmony upon this subject; many authorities holding that municipalities are estopped to deny rights so acquired. We are, however, of the opinion that plaintiff’s right does not rest in parol. The petition to the council specifically described and defined the use of, and the exact location of the sewer in, the streets and alleys desired, which use the common council had the undoubted authority to grant. The council referred it to the committee on sewerage, with power to act. This appears upon the record of the proceedings of the council. The committee did act, but there does not appear any recorded evidence of their report to the council. That they authorized the construction of the sewer is not disputed. Before plaintiff was permitted to proceed to its construction, he was required to give a bond. The council received this bond, approved by the proper officers, and it became part of the public records of the city. Every subsequent petition was just as specific, was treated in the same manner, and a similar bond executed, approved, and filed. The city needed sewerage. It was willing to relieve itself of taxation by giving'to the plaintiff the right to construct a system of sewerage at his own expense, but under the city’s supervision, giving the right to the plaintiff to contract with lot owners to construct sewers from their own premises into it. Plaintiff’s written proposition to the city was clear and explicit. The council virtually accepted it by conferring upon its appropriate committee the power to carry it into effect, and spreading that resolution upon its records. It is, however, unnecessary to hold that this was a sufficient acceptance of the proposition, to satisfy the statute of frauds. The bond filed referred to the petition, and its acceptance and approval made the contract complete. In referring this petition to its committee, the common council was not acting in its governmental capacity, but in a quasi private capacity, as hereinafter determined. It is not necessary to grant this use of the streets by an ordinance. It was not a legislative act. The petition, the resolution, and the bond constituted a contract in writing by which the use of the streets was granted to the plaintiff. If A. makes a written proposition to B. to construct a tile drain from A.’s land across B.’s, stating its exact location, which is for the mutual benefit of both, and B. writes A. that he has authorized C. to act in the matter for him, and C. acts, takes a bond from A. to B. to construct it as proposed, delivers it to B., and A. then constructs the drain, is there not written evidence to satisfy the statute? In this proceeding the city stands in no better position than B. would in the proposed case. The. same rules of law and equity apply in the one case as in the other. It is impossible to read the record in this case without reaching the conclusion that reports were made by the sewer committee to the council authorizing and approving this sewer. If this record contains all that is found in regard to this matter in the record of the common council proceedings, there is negligence on the part of some one in not properly keeping the records, or on the part of the council in not putting its proceedings in proper shape for recording. In such cases- courts will not hunt for technicalities to defeat rights so clearly grounded in equity and good conscience, but will give a liberal interpretation to writings found, in order to satisfy the statute of frauds.

The use of the streets granted to the plaintiff was not a license, revocable at the will of the defendant. It is of little moment what name we give the right conveyed, whether an easement or an irrevocable license. It was known to the parties that plaintiff must incur great expense, and it would be absurd to hold that he and the city entered into this arrangement for their mutual benefit with the understanding that the city might at any time revoke it, and impose the entire loss upon the plaintiff. The city has undoubtedly the right to superintend its construction, and to see that connections with other private sewers from lot owners are properly made, and to regulate its use so as not to be injurious to its citizens. With these restrictions, the plaintiff obtained a vested right to the use of his property. To hold otherwise would be a reproach upon the law.

Has the plaintiff pursued his proper remedy? He claims that the action of the council has virtually destroyed the value of his property. It is essential to determine just what the council has done. It has not attempted to destroy the sewer, or to interfere with the right of those who ai*e now connected with it to use it. By its ordinance, and the arrest of the plaintiff for its violation, it only attempted to interfere with his right to make other contracts in the future, and to connect other private sewers with his own. In passing the ordinance and enforcing it, the council was in the exercise of a governmental power, for which it is not liable in damages resulting from the enforcement of the ordinance by the city officials. The authorities recognize that municipalities act in two capacities, the one governmental and the other quasi private. When acting in the latter capacity, they are subject to the same rules that govern private corporations or individuals in their transactions with others. In the latter case the doctrine of strict construction is not applied, and courts do not look for express authority for the exercise of the power. The power is inherent in them to make contracts for lighting streets and public buildings, to secure water for fire and other purposes, and to construct sewers in order to protect the health of the inhabitants. It may be, and often is, difficult to determine in which capacity a municipality is acting in a given case, but the distinction is well settled. Chief Justice Nelson, in Bailey v. Mayor, etc., of New York, 3 Hill, 539 (38 Am. Dec. 669), thus states it:

“The distinction is quite clear and well settled, and the process of separation practicable. To this end. regard should be had, not so much to the nature and character of the various powers conferred as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private' company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred.”

See, also, 1 Dill. Mun. Corp. § 445; Tied. Mun. Corp. § 324; Hill v. City of Boston, 122 Mass. 344, 359 (23 Am. Rep. 332); Beers v. Dalles City, 16 Or. 334; Barron v. City of Detroit, 94 Mich. 601 (34 Am. St. Rep. 366); Burford v. City of Grand Rapids, 53 Mich. 98 (51 Am. Rep. 105); Western Saving Fund Society v. City of Philadelphia, 31 Pa. St. 189 (72 Am. Dec. 730). The passage of the ordinance and its enforcement did not, therefore, give the plaintiff a remedy by an action at law to recover damages. Culver v. City of Streator, 130 Ill. 238; Trammell v. Town of Russellville, 34 Ark. 105 (36 Am. Rep. 1). We think the only appropriate remedy is by some proceeding to restrain the action of the council from interfering with the plaintiff’s legal rights. An examination of the authorities will show that this is the usual remedy. Mayor, etc., of Baltimore v. Radecke, 49 Md. 217; Dayton v. Quigley, 29 N. J. Eq. 77; Spokane St. R. Co. v. City of Spokane Falls, 6 Wash. 521; 1 Dill. Mun. Corp. § 420; Tied. Mun. Corp. § 396.

It should be understood that this opinion is based entirely upon the case made by the plaintiff. If the defendant has any legal ground to defeat the right of the plaintiff to connect other sewers with his own, it does not appear upon this record.

The judgment is affirmed, for the reason that plaintiff cannot maintain an action at law.

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

Hooker, J.

(dissenting). The plaintiff, at his own expense, constructed sewers in the city of Muskegon, the same being partly upon private ground, which he owned, or over which he obtained the right of way, and partly in streets, where they were laid by consent of the common council, upon petition presented to it by the plaintiff or by adjacent landowners. The records of the council do not show what proceedings were had in all cases, and it may not be too much to say that no express authority to construct any portion of the sewers appears. It is apparent, however, that private cesspools had become noxious, and the inhabitants were desirous of relief through sewers, and the plaintiff laid a 12-inch sewer from the lake across private grounds, and extended it, with the assent of the council, for a short distance in the street, and he was suffered to make further extensions, from time to time, as petitions were filed with the council. Among other places that were connected with the sewer through such extensions, were the courthouse and the public schools. The plaintiff sold rights to adjacent landowners to connect their premises with the sewer at the price of $100 per lot, and, when the lower end of the sewer became inadequate by reason of increased patronage, he laid a second 12-inch sewer, to increase its capacity. In all he laid about four miles of sewer. It is claimed that the sewer always worked satisfactorily, though the defendant asserts that, by reason of the fall in the level of the lake, its discharge is not under water, and that it is therefore a nuisance. On the other hand, there is evidence tending to show that a sewer whose mouth is below the surface of the water would become clogged, and that it is proper to discharge above the surface.

After a period of about four years from the construction of the first portion of the sewer, and in February, 1888, a petition for leave to build a sewer, to be connected with plaintiff’s sewer, was filed by one Baker, which appears not to have been acted upon before October 5, 1888, at which time the plaintiff sent a communication to the council, stating that he had been informed that Baker’s petition was to be denied, unless a waiver should be filed of all rights of lot owners to oppose a tax on their lots for the purpose of constructing a sewer by the city to be connected with lots at a future time, and protesting against such action, but offering to pledge his sewer for the payment of such tax. On February 3, 1890, one Delano filed with the council a petition setting up a copy of a contract with the plaintiff to connect his house with the sewer, and asking leave to make connections. This was referred to the sewer committee, which reported in favor of granting the petition “upon» the condition that the work should be done under the city’s supervision, and that the petitioner waive all his rights to the city.” This report was adopted. In May, 1890, an ordinance was passed prohibiting connection with any private sewer in the city without first obtaining permission from the council. It is claimed that the plaintiff was refused permission to make any more connections, and that when he attempted to do so he was arrested by the city authorities, and prevented; that he had previously offered to adjust the mktter by a sale of his sewer to the city, and a ■committee of the council had examined the same, and reported to the council advising such purchase for the sum of $15,000, which report was acted upon, and a resolution passed to offer the plaintiff that sum, but the same was vetoed by the mayor.

At the close of plaintiff’s testimony a motion was made that the court direct a verdict for the defendant upon the following grounds, viz.:

“First, because the plaintiff has shown no valid grant from the city to Mr. Stevens.

“Second, because the plaintiff has not shown that the defendant has in any manner whatever interfered with the operation of his sewer,

“Third, because it appears that the grants of the rights to connect with this sewer were granted to private individuals, and said grants and such grants as have been given to private individuals the terms cannot be extended beyond the written permit or the written grant that was given.

‘ ‘ Fourth, because the plaintiff has shown no damages that can be estimated or computed, or can be rendered the basis of a money judgment.

“Fifth, because the testimony of the plaintiff shows no cause of action.”

The court granted the motion, but it does not clearly appear what view he took of the case, unless it be that, as the plaintiff had not shown that the city interfered with or destroyed any portion of the sewer, he had not proved his case.

The declaration is in two counts, both of which claim damages by reason of plaintiff’s being prevented from profiting from his sewer, through selling and making connections, by the wrongful act of the defendant. We have little doubt that the plaintiff was permitted and encouraged to construct these sewers in the expectation that he would be allowed to use them in much the same manner that a gas company does its pipe, and that it was the intention of the parties that the plaintiff should construct the sewers in return for the privilege of selling rights therein to the inhabitants for a sufficient period to make his venture one of profit, rather than loss. But this privilege involves, and is inseparable from, the use of the land through which the sewer is laid. To create a valid right to such use it is necessary that the plaintiff have an interest in such land, amounting at least to an easement, which must rest in grant, and cannot be created by parol. Such a grant is within the power of the council, but, like a legislative grant, it must appear by its records, and Cannot be otherwise made.

It is contended by counsel that the contract is valid, though there be no grant, and that the plaintiff may recover damages for the breach of the contract arising out of the revocation of his license. The difficulty with this is that the contract was void, inasmuch as it involved the creation or transfer of an interest in land. All contracts of this kind, whether executed by the payment of the consideration or executory, are within the statute. The utmost effect of a parol contract of this kind is a license, and, as a rule, licenses, whether oral or written, are personal 'to the licensee, not subject to alienation, and may be revoked at will, when and so far as they affect title to land. In some jurisdictions a rule has obtained which makes such a license irrevocable where the licensee has made an expenditure in reliance upon the license. This is upon the ground of estoppel. Counsel cite cases from Illinois and Montana where this has been held against a city which had permitted railroads to be constructed upon its streets. In Maxwell v. Bridge Co., 41 Mich. 467, Mr. Justice Cooley cites such cases from Pennsylvania, Georgia, Indiana, Illinois, and Ohio, but does not commit the court to that doctrine. Again, in Day v. Walden, 46 Mich. 575, the same judge alludes to the rule, but again the question is not passed upon. We should expect to find this rule prevailing in those States where estoppels in pais are permitted to apply to land, but it seems inconsistent and irreconcilable with the rule that title to land cannot pass by estoppel,—a rule which is settled in Michigan. Hayes v. Livingston, 34 Mich. 384 (22 Am. Rep. 533); Nims v. Sherman, 43 Mich. 45; White v. Hapeman, 43 Mich. 267 (38 Am. Rep. 178); Showers v. Robinson, 43 Mich. 502; Morrill v. Mackman, 24 Mich. 283 (9 Am. Rep. 124); First Nat. Bank v. McAllister, 46 Mich. 397; Shaw v. Chambers, 48 Mich. 355; De Mill v. Moffat, 49 Mich. 125; Penfold v. Warner, 96 Mich. 179 (35 Am. St. Rep. 591); Wood v. Railroad Co., 90 Mich. 339; Huyck v. Bailey, 100 Mich. 223; Gugins v. Van Gorder, 10 Mich. 523 (82 Am. Dec. 55). We are therefore constrained to hold that the sewer appears to have been constructed under an arrangement that made its use inseparable from an easement. Maybury v. Gaslight Co., 38 Mich. 155; Attorney General v. Detroit Suburban R. Co., 90 Mich. 69. The alleged contract was not such as conveyed an interest in the land, and therefore it amounted to no more than a license, which the council had the legal right to revoke.

Equitable remedies cannot be considered upon this record.

I think that the judgment should be affirmed.