author:
Carpenter, J.
      Hooker, C. J.

text:
    LAMSON v. CITY OF MARSHALL.
    1. Assignment op Claim — Security—Action by Assignor.
    The assignment of a claim as security does not prevent an. action thereon in the name of the assignor with the knowledge and acquiescence of the assignee, the judgment being: conclusive on .the assignee.
    2. Same — Claim Against City — Presentation.
    Under a city charter forbidding suit against the city on a claim until after presentation thereof to the council, the presentation of a claim by one who has assigned it as security will support an action by him with the knowledge and acquiescence of the assignee.

      3. Municipal Corporations — Contracts — Construction of Sewer — Certificate of Engineer — Right of Action.
    A contract for the construction of a sewer for a city provided for final payment on the work being completed in accordance with the contract, and to the satisfaction of the engineer, and dn its being tested in such manner as should, in his opinion, be sufficient, and on a certificate being'made by him showing the completion of the work. It also provided that no pipe should be laid in water; that water should not be allowed to run through the pipes during the construction, unless with the permission of the engineer; and that, in case of misunderstanding as to the meaning of the contract, the engineer’s interpretation should be final. The sewer proved defective by reason of the pipes having been laid in water, in consequence of which the engineer refused a certificate. Held, that if such method of construction was directed, and not merely permitted, by the engineer, the contractor could maintain an action on the contract, though this method was favorable to him, and he knew that he could not thereby make a tight sewer, and though the contract further provided that, while the engineer might assent to special means of prosecuting work in difficult cases, this should not relieve the contractor of responsibility for the result, and that he should be liable for any defects in material or workmanship that might become apparent before final settlement. Hooker, C. J., and Montgomery, J., dissenting.

      4. Same.
    Especially was this so where the city was advised of the facts during the progress' of the work, and paid the monthly estimates without objection.
    5. Same — Estoppel.
    A city is not estopped to set up an insufficient performance of a sewer contract by the mere fact of its payment of periodical estimates without protest.
    6. Same — Authority of Engineer.
    General authority on the part of a city engineer to modify a sewer contract cannot be inferred from the fact that he is authorized to direct the manner of its performance.
    7. Same — Certificate of Engineer — Right of Action — Unpaid Claims.
    Under a contract for the construction of a sewer for a city, providing for final payment on a certificate by the city engineer that the work has been completed and that all' claims for labor and material have been satisfied, the existence of such claims when suit was begun by the contractor will not prevent a recovery, where the engineer, though knowing of the claims, said nothing about them in his notice that he^ would decline to accept the work until the sewer should be repaired, and the city was protected against liability for them by a sufficient bond, and they were in fact paid before the. trial.
    8. Same — Delay—Stipulated Damages.
    A provision in a contract for the construction of a sewer for a city, under the head, “Penalty for Noncompletion of Work,” that, if the work is not completed by the stipulated time, the contractor shall pay the city $10 a day while in default, as liquidated damages for the dqlay, and also the cost to the city of engineering, inspection, and superintendence during the default, is, as to the $10 a day, not a penalty, but a proper stipulation as to damages.
    5. Same — Extension oe Time by Council.
    There is not an extension of time by a city council, within a contract for the construction of a sewer for the city, providing for damages if the work be not completed at the stipulated time, or within such further time as may be allowed by the council, where, on petition for an extension, they merely adopt a report reciting that, while no advantage is desired, they believe it best to allow the matter to stand until ' final settlement, when all matters can be as readily settled as now.
    10. Same — Waiver oe Damages.
    A provision in a contract for the construction of a sewer for a city, for payment to the city of damages of $10 a day for failure to complete it at the stipulated time, is not waived by permitting the contractor to complete it under the supervision of the city’s engineer, and by receiving and paying estimates for the work.
    11. Same — Estimate oe Engineer — Conolusiveness.
    Under a contract for the construction of a city sewer, providing a higher price for rock excavation than for earth, and stating what shall be classified as earth and what as rock, payment to be made after the estimate of the city’s engineer, whose interpretation of the contract is to be final, has been approved by the city council, his estimate is binding, if honestly made; and one attacking it has the burden of proving dishonesty.
    12. Same.
    The contractor under such contract has no right to be present at a conference between the engineer and his assistant to determine how to classify the material excavated.
    13. Same — Fraud—Evidence.
    That a city engineer’s estimate of the rock excavated by a contractor in constructing a sewer for the city was only 1,600 cubic yards, while there were 2,400 cubic yards, is not evidence of bad faith, destroying the binding effect of his estimate; but the fact that, .when the contractor was entitled to his first estimate, the engineer declined to make one on the ground that “it might scare the city fathers,” saying that he would “wait until we got scattered around on the outside trenches, and then they wouldn’t know where we were, or what the estimate was for,” in connection with the fact that rock was not anticipated, does justify an inference that the estimate was not the engineer’s honest judgment.
    Error to Calhoun; Smith, J.
    Submitted December 4, 1902.
    (Docket No. 48.)
    Decided May 29, 1903.

      Assumpsit by Daniel A. Lamson and David Crowley, copartners as Lamson & Crowley, against the city of Marshall, to recover a balance due for the construction of a sewer. From a judgment for plaintiffs, defendant brings error.
    Eeversed.

      John E. Foley (James M. Powers, of counsel), for appellant.

      H. E. Winsor ( Weadock & Purcell, of counsel), for appellees.
   Carpenter, J.

The plaintiffs recovered judgment in the court below for $4,241.75, an unpaid balance claimed to be due them for the construction of a sewer system for the defendant corporation. Defendant insists that the court below should have directed a verdict in its favor, because: First, before suit was commenced plaintiffs assigned their entire claim against defendant to the Commercial Savings Bank; second, plaintiffs never obtained a certificate showing the completion of the work and the satisfaction of all claims for labor and material, which, by the contract, was a condition precedent to the right to maintain this action. Defendant also claims that the court below erred in not instructing the jury that it was entitled to stipulated damages for delay in construction, and in permitting plaintiffs to recover for 800 yards of rock excavation in excess of the allowance of the engineer. There are numerous other assignments of error, which will be sufficiently considered in discussing the foregoing assignments.

1. Assignment to the Bank. It appears that an assignment was executed by plaintiffs of “all moneys due and coming due” “for construction work on sewer” to the Commercial Savings Bank of Marshall. This was given to secure an indebtedness of $2,500, still unpaid at the time of the trial. Claim is made by the defendant that this assignment prevented a recovery in the name of the plaintiffs. Defendant contends that, though the plaintiffs presented this claim to the defendant’s council, the failure of the Commercial Savings Bank also to present it affords a defense to the suit, because section 5 of chapter 1? of the charter of the city of Marshall forbids suits ‘ ‘ against said city, on any account or claim, until the same shall have been presented to said council.” We do not think this contention sound. It appears that the suit, though prosecuted in plaintiffs’ name, was carried on with the knowledge and without the objection of the bank. The judgment in this' case will, therefore, be conclusive upon the bank. The presentation of the claim by the plaintiffs complied with the charter provision above quoted.

2. Can this suit be maintained without the engineer’s certificate that the contract was completed and the material and labor paid for ? On the completion of the work, in July, 1900, it was found that a section of the sewer, 1,080 feet in length, under Spruce street, which affected about one-third of the sewer system of the city, was defective. Because of this defect the engineer refused to give his certificate, and directed plaintiffs to relay this sewer. To relay it would have cost more than the balance claimed •due on the contract. The contract contained this provision:

“ On all work provided for in this contract being completed in accordance with said contract, and to the satisfaction of the engineer, and on its being tested in such manner as shall, in the opinion of the 'engineer, be sufficient, and a certificate made by the engineer setting forth the amount of said work, and that said work has been completed, and that all claims for labor and material have "been satisfied, the party of the first part agrees to pay to said parties of the second part the amount shown to be due to said second parties by said certificate of said engineer.”

Plaintiffs contend that the defective condition of the sewer is due to a method of construction adopted by defendant’s'engineer, and therefore that, under decisions of this court hereinafter referred to, said engineer has no right to reject said sewer, or to withhold his certificate, because of its defective condition. The evidence of the plaintiffs tended to prove that, late in the year 1899, they encountered a large body of running water while constructing the sewer in question; that this water came into the sewer in such quantities that it could be removed in no practicable way; that the engineer’s assistant, in charge of the work, stopped the laying of the sewer until the engineer, who was at that time in Toledo, should determine what to do; that on his arrival the engineer directed said plaintiffs to put a roll of cement as well as a roll of oakum around the joints, and -then to proceed to lay the pipes in “the running water; that, acting under these orders, and under the immediate supervision of the engineer or his assistant, plaintiffs laid about 300 feet of said pipe; that in May, 1900, in this same sewer, they were troubled in a similar manner with water; that at that time, acting under the direction of the engineer, they obtained a steam pump, and lowered' the water, though they did not entirely remove it, and by his orders again laid pipe in the sewer while water was running therein, in the same manner as that adopted in the preceding year; and that as fast as the pipe was laid they covered it up, as they were required by their contract to do. The evidence tends strongly to prove that the defect in this sewer is due to the fact that the manner-in which it was constructed did not exclude the water in which it was laid from entering the joints between the pipes.. Defendant’s testimony affirmed, and plaintiffs’ denied, that the engineer consented to the method chosen on the condition that plaintiffs should make a sewer with absolutely tight joints.

In Wildey v. School District, 25 Mich., at page 424,. Mr. Justice Cooley said:

“Whatever passed under his [the superintendent’s] inspection as the work progressed, and was in good faith, approved by him, expressly or by implication, was not open to objection on the part of the defendant afterwards,, and, as to so much of the work, at least, the plaintiff had the same right to recover that he would have had if the proper certificate had been furnished him. For it could never be held to be the intention of the parties, by any such words are are contained in this contract, to give the superintendent power to re-examine his own conclusions after the builder had, as he supposed, completed the work, and then to refuse a certificate, and preclude the builder from recovering payment, except upon the condition of making changes and modifications in particulars which had his approval, or, being fully known to him then, were-not objected to when the work was being done. An express agreement- to give him this power would be so-one-sided that it is not for a moment to be supposed the builder would enter into it. This -contract contemplated the production of the certificate as the evidence of the contractor’s right to his pay; but it might be waived, as it was in this case to the extent that payments were made and the plaintiff was entitled to it as of right, as to any further work which he had done with the superintendent’s approval, up to the 85 per cent, to be covered by the monthly estimates, and to the full amount, if the work was completed under his direction.
“If there were intentional departures from the contract, either as to materials or as to the mode of construction, with the approval or concurrence of the superintendent, a question might arise whether the contractor was entitled to greater or less compensation than if the contract had been strictly complied with; but this record does not raise that question. Variances that may have be,en treated by both parties as immaterial at the time-should not afterwards be held to be departures from the contract, and what was then regarded as substantial compliance with its terms should be held a performance inlaw.”

In the case of Schliess v. City of Grand Rapids, 131 Mich., at page 62 (90 N. W. 704), it was said:

“The law would not permit defendant to see this work go on, to ratify it day after day and week after week, to see plaintiff putting in stone not in exact accord with the contract, and then say, when the work is done, ‘You have not complied with the contract.’ Its time to accept ox-reject was when the work was being done. It could not lull the plaintiff into the belief that this work was satisfactory, and, when completed, reject it.”

Defendant contends that the principles announced in the foregoing cases do not apply to this case, on account of the provisions of the contract under which the sewer was constructed, and on account of the circumstances attending the building of the defective sewer. The provisions of the contract touching this question are as follows:

Plaintiffs were to ‘ ‘ excavate for building, and complete, good, firm, and substantial sewers, according to the map of route on file in the recorder’s office, including sewer pipe, iron pipe, cement, suitable packing, house connections, manholes, lampholes, outlet masonry, * * * and all other material and appurtenances necessary to construct a proper and complete sewer, of the dimensions set forth in the schedule hereunto annexed, in the manner and under the conditions hereinafter specified.”
“Sewer trenches must be kept clean and free from water by the use of a pump, pail, or sponge during the process of the work, as no pipe shall be laid in the water.”
‘ ‘ All pipes must be kept thoroughly clean, and no water will be allowed to run through them during the construction of the sewer, unless with the permission of the engineer.”
“Although the engineer may assent to special means of prosecuting work in difficult cases, this will not relieve the contractor of the responsibility of the result.”
“The contractor shall have charge of and be responsible for the entire length of sewers for whose construction he has contracted, until their completion and acceptance. He shall also be held liable for any defects which may appear in the material he has furnished, or in his work, before the final payments specified herein.”
“Any tests which may appear to the engineer proper for ascertaining the condition of the pipes may be made use of, and the contractor will stand all damage caused by such tests. If any pipes are broken, or if cement in joints shall protrude sufficiently to form an obstruction to any test balls or other medium adopted by the engineer, the same shall be removed and made good by the contractor at his expense.”
“If at any time after the acceptance of the work, and before the final five per cent, shall have been paid, any portion of the sewers, their appurtenances, or the surface of the street should require repairs by reason of faulty material or workmanship on the part of the contractor, the party of the first part shall notify the contractor, either in person or by mail, that such repairs are necessary, and defining the amount and nature of the work to be done. Should the contractor fail to cause such repairs to be made within ten days after such, notice, the party of the first part shall have the right to purchase materials and employ men to execute the said repairs, and the cost of the same shall be deducted from the moneys due the contractor, or, from the insufficiency of said retained sums, shall be a charge upon the bond attached to this agreement. ”
“The work is to be done in accordance with the requirements of the plans, specifications, and contract, and in case of misunderstanding of the meaning of such plans, specifications, and contract, or any part of them, the engineer’s interpretation shall be taken as final.”

Wildey v. School District clearly holds that the engineer had sufficient authority to direct plaintiffs, if, in his judgment, the exigency demanded (and we are bound to assume it did), to disregard the provision that “no pipe shall be'laid in the water.” The plaintiffs had agreed to complete their work in accordance with the contract, and to the satisfaction of the engineer, and the engineer was made the judge of the meaning of the contract. The conclusion is unavoidable that the contractor performs his obligation when he does his work in the manner directed by the engineer. It is not for him to determine what his obligations are, as, in any event, he is bound by the decision of the engineer.

It is insisted, however, that the provision, “Although the engineer may assent to special means of prosecuting work in difficult cases, this will not relieve the contractor of the responsibility of the result,” imposes upon the plaintiffs in this case the responsibility for the result of the improper method of laying this sewer. In my judgment, this provision is not applicable to this case. If the plaintiffs .are right in their claim (and whether they are right or not is a question for the jury), the engineer did more than assent to the means adopted in this case. He positively directed their adoption.

It is urged that it was a favor to the plaintiffs to be relieved from their obligation to remove the water before laying the sewer pipe, and that they actually knew that they could not, by the method adopted, make a tight sewer. Though this is true, the testimony nevertheless warrants the finding that the method by which this pipe was laid was selected by the engineer without any suggestion whatever from the plaintiffs, and that he directed its adoption with no understanding whatever that they were to be responsible in the event of its failure. The fact that the method of construction directed by the engineer was favorable to' the plaintiffs, and known by them to be imperfect, might have great weight with the jury in determining the issue of fact raised by the conflicting testimony as to whether plaintiffs or defendant assumed the responsibility for the consequences resulting from the changed method of construction. But I know of no principle which permits the contractors to disobey orders of an engineer directing a variation from the contract because that variation is to their advantage, or because they believe that variation to be detrimental to the interests of the other party to the contract. The. contractors are bound to obey the orders made in good faith by the engineer, whether those orders are advantageous or detrimental to their interests; nor are they exempt from obedience because they believe those orders to be unwise.

The provisions in the contract making the contractor ‘‘liable for defects in the material he has furnished or in his work,” and making him responsible for repairs “by reason of faulty material or workmanship,” do not, in our judgment, apply to defective work performed at the express direction of the engineer. The engineer was, by the contract, made the final arbiter, and what he expressly directed as the work progressed was, as far as the contract was concerned, free from defects, and not faulty in workmanship.

There is also in the contract the provision heretofore quoted, providing for the payments after the sewer is “tested in such manner as shall, in the opinion of the engineer, be sufficient.” The object of this test, manifestly, is to determine, not whether the methods adopted by the engineer were proper, but whether the plaintiffs have performed their work in accordance with their obligations. It is, in our judgment, repugnant to both equitable and legal principles to compel plaintiffs to again excavate and relay this sewer because the engineer selected an improper method of laying it.

Defendant argues that the plaintiffs’ contention that the power rests in the engineer to change the method of performing the contract imposes upon it obligations never entered into by its common council. The same argument might have been urged in Wildey v. School District and Schliess v. City of Grand Rapids, supra. In our view, a municipality cannot avail itself of the advantage of having a supervising architect, with power to decide on every detail as it may arise, without taking the consequences of his making an erroneous decision. To hold that a municipality could not avail itself of the services of such a superintendent would be to shear it of a very proper and necessary power.

In the engineer’s report to the defendant, January 20, 1900, we find the following:

“I would call your particular attention to article 8, paragraph 3, and to article 9, relative to flow of water. [These are the contract provisions heretofore quoted.] Had Mr. Lamson been compelled to .keep the sewer dry by use of ‘ pump, pail, or sponge,’ it would have ruined him. He has honestly endeavored, we believe, to build a perfect sewer; his methods, and his use of dry concrete, have enabled him to get good results; and, knowing that he was losing, your engineer did not enforce the pumping, although' in the opinion of the writer, it could have been done most of the time.”

Information was thus conveyed to defendant’s corporate organization of the method of laying sewer adopted by the plaintiffs, with the consent of the engineer. Defendant’s failure to make any objection to this method, and its continuance to pay monthly estimates, would furnish evidence of its assent to the method adopted, if that assent is necessary.

It follows from the foregoing that, in our judgment, the jury were warranted in finding that the defective- condition of the sewer was due solely to an improper method of construction lawfully ordered by the engineer in charge; and, if they did so find, plaintiffs were entitled to recover for this work, without the engineer’s certificate, in accordance with the decisions of Wildey v. School District and Schliess v. City of Grand Rapids, supra.

The court, however, erred in instructing the jury:

“If you find they [the engineers] permitted the work specified in the contract to be performed in a manner different than that specified in the contract, they waived the conditions of the contract, and the plaintiffs are entitled to recover.”

This language, as does the language in other parts of the charge, throws the responsibility upon defendant where the engineer has only assented to a departure from the contract. In such case the terms of the contract imposed on plaintiffs “the responsibility of the result.”

Nor was it proper to charge the jury:

•“The city could not permit the plaintiffs to perform this work, put down sewer pipe, cover it up, pass it as satisfactory to them at the time, if they did so pass it, make estimates upon it, and pay them, and thereafter reject the-same as unsatisfactory.”

See Boots v. Steinberg, 100 Mich. 134 (58 N. W. 657).

Nor do we approve of portions of the charge from which the jury might have understood that the engineer and his assistants possessed general authority to modify the contract. They had no such general authority. They did possess, however, the power to direct plaintiffs in the performance of their work. Under our views, as expressed herein, plaintiffs were excused for deviating from the contract when, and only when, they acted under that direction.

It also appeared that, at the time this suit was instituted, the plaintiffs had not paid an account for sewer pipe of about $1,600, and a few other small accounts, amounting to less than $500. After plaintiffs claimed to have completed their contract, and just before this suit was commenced, they received a written notice from the engineer, stating that he would decline to accept their work until they repaired the sewer. Nothing was said in this notice about the claims under consideration, though their existence and condition were known to the engineer. Defendant was protected against liability for these claims by an indemnity bond, the sufficiency of which is not questioned, and they were paid just before the trial commenced in the court below. Under these circumstances we do not think that the existence of these claims at the time suit was commenced affords a defense. Plaintiffs were justified in acting upon the notice from the engineer, which told them, in effect, that they could obtain his certificate by rebuilding the sewer, and only, in that way. According to that notice, the payment of the claims would in no way have aided them in obtaining the certificate.

3. Stipulated Damages. Plaintiffs claim their work was completed June 24, 1900. The contract contained this provision under the head, “Penalty for Noncompletion of Work:”

“ It is hereby mutually understood and agreed that time, whenever mentioned in this contract, is the essence of this agreement; and the said parties of the second part still further agree that if said work is not completed on or before said date of completion [which is January 1, 1900], or within such further time as may be allowed by the city, through the common council, for such performance and completion, they shall and will pay the common council for the city of Marshall the sum of ten dollars for each and every day that the said parties of the second part shall be in default, as liquidated damages for said delay; and also that they shall and will, in addition thereto, pay to the said city the cost of engineering, inspection, and superintendence that the common council may have found it necessary to incur after the time fixed for the completion of the work aforesaid; all of which shall be determined by the engineer, and certified by him in writing.”

The trial court instructed the jury to allow the cost of engineering, inspection, and superintendence occasioned by the failure to complete the contract January 1, 1900, and to disallow the amount of $10 per day stipulated damages. It is contended, in support of this ruling, that the $10 per day is not only named as a penalty, but is a penalty, inasmuch as the.provision requiring the plaintiffs, in addition thereto, to pay the cost of engineering, inspection, and superintendence, covers all the actual damages caused the city. We cannot assent to this reasoning. The fact that the word “penalty” is used is not decisive. Jaquith v. Hudson, 5 Mich. 123. Neither is it true that the provision requiring the plaintiffs to pay the cost of engineering, inspection, and superintendence covers all actual damages. This does not include any compensation to the city for being deprived of the use of this sewer, which cost $28,000. Nor is it true that the interest on the cost of the sewer would compensate the city or its inhabitants for being deprived of its use. It was, under the authorities, a proper case for the stipulation of damages.

It is argued that “the common council extended the time in which to perform this work by leaving the matter open until the work was completed, as they stated, and by permitting the contractors to continue the work the following spring, sending their engineer to examine it, receiving the estimates upon the work, and making payment on the estimates.” Just before the 1st of January, 1900, plaintiffs petitioned the common council for an extension of time for completing their contract until June 15th of the following year. On the 8th of January, 1900, the council adopted the report of a committee, which contained this language:

‘ ‘ While no advantage is desired to be taken of the contractors, we believe it best to allow the matter to stand without action until the final settlement of the contract, when all matters relating to the contract can be as readily settled as now, and that such action is better than to settle part of the matter now, and leave the rest until the future. We therefore recommend that the petition be laid on the table until the completion of the sewer under the contract. ”

This clearly was nothing more than a statement to the contractors that this question would be determined when their contract was completed. It certainly was not an extension of time.

Was the right to insist upon these stipulated damages waived by the city’s permitting plaintiffs to proceed, under the supervision of its engineers, and by receiving and paying estimates for the work ? This course is precisely what was contemplated by the contract when it was made, and by the council of the city when they declined to act upon the petition to extend the time. In other words, the contract provided, and the understanding contemplated, that, if the work was not performed by January 1, 1900, it should be performed later. We are unable to see how carrying out the contract according to its terms affords evidence of the waiver of those terms. In our judgment, therefore, plaintiffs must pay the stipulated damages under consideration.

4. Rock Excavation. The engineer estimated that plaintiffs excavated 1,594.6 cubic yards of rock. Plaintiffs claim that they excavated 2,400.8 cubic yards. The difference between the estimate of the plaintiffs and the defendant is due largely to a difference in classification, plaintiffs insisting that certain material encountered in excavation should be classified as rock, which the engineer classified as earth. The contract price for rock excavation was $2 per cubic yard. It provided:

“All stones or boulders under eight cubic feet in volume will be classified as earth. * * * All boulders, ledge, or stratified rock having eight cubic feet in volume or over shall be paid for per cubic yard as rock. All shale which can be removed by pick or bar shall be classified as earth excavation. All shale requiring blasting for its removal shall be classified as rock. * * * The engineer shall, in all cases, decide whether blasting is necessary or not.”
“In case of misunderstanding of the meaning of such plans; specifications, and contra'ct, or any part of them, the engineer’s interpretation shall be taken as final.”
“All work to be paid for by the cubic yard * * * after the estimate of the engineer has been submitted to the common council in writing, and after the formal approval of such estimate by the common council.”

Under the charge of the court the jury were permitted to disregard the estimate of the engineer, and to allow the plaintiffs’ full claim for rock excavation, on the theory that the testimony warranted the inference that there was fraud or such gross mistake in the estimates as to make them of no binding force. Defendant insists that, under the evidence in this case, the jury should have been instructed that the estimates were final and conclusive. Plaintiffs’ counsel claim that:

‘ ‘ The only accurate, honest measurement made of the rock was made by Mr. Lamson [plaintiff], with the assistance of his foreman; * * * that Mr. Riggs [the engineer] and Courtright [his assistant], in consultation in secret, * * * determined how they would classify the rock, and did not give the contractors any information as to what that classification was; and that they made computations of the rock excavated according to the profile that was made in Toledo by a draftsman who never saw the work, and was shown to be wrong.”

It also appears that more rock was encountered than was anticipated by the engineer. It is affirmed by the plaintiffs and denied by the engineer that about September 15, 1899, when they were entitled to their first estimate for excavating rock, the engineer said:

“If we got an estimate at this time, it would scare the city fathers so, as there was no rock figured on; and wait until we got scattered around on the outside trenches, and then they wouldn’t know where we were, or what the estimate was for; and he put me off.”

An estimate was made about a month later, but plaintiffs claimed it was insufficient. The last estimate of rock was made in January, 1900.

Does this evidence justify a disregard of the stipulations in the contract making the decision of the engineer final ? In the case of Chicago, etc., R. Co. v. Price, 138 U. S. 185 (11 Sup. Ct. 290), the Supreme Court of the United States, speaking through Mr. Justice Harlan, said of stipulations of the character under consideration:

“We are to presume from the terms of the contract that both parties considered the possibility of disputes arising between them with reference to the execution of the contract, and it is to be presumed that in their minds was the possibility that the engineer might err in his determination of such matters. Consequently, to the end that the interests of neither party should be put in peril by disputes as to any of the matters covered by their agreement, or in reference to the quantity of the work to be done under it, or the compensation which the plaintiff might be entitled to demand, it was expressly stipulated that the engineer’s determination should be final and conclusive. Neither party reserved the right to revise that determination for mere errors or mistakes upon his part. They chose to risk his estimates, and to rely upon their right, which the law presumes they did not intend to waive, to demand that the engineer should at all times, and in respect to every matter submitted to his determination, exercise an honest judgment, and commit no such mistakes as, under all the circumstances, would imply bad faith.”

In harmony with this decision are the following cases: Hanley v. Walker, 79 Mich. 614 (45 N. W. 57, 8 L. R. A. 207); Kihlberg v. United States, 97 U. S. 398; Sweeney v. United States, 109 U. S. 618 (3 Sup. Ct. 344).

The rule deduced from these authorities, and the true rule, in our judgment, is this: The estimate is binding if honestly made; it is not binding if it does not accord with the honest judgment of the engineer making it; and the burden to prove dishonesty is upon the party attacking the estimate. These provisions would be nugatory if bad faith were inferred from mistakes in measurement, in computation, or in classification. Nor can we agree with the trial court that, under the circumstances of this case, even a mistake of 800 yards afforded evidence of bad faith. This might have been due to an honest difference of classification.

We do not think plaintiffs had any right to be present at the conference between the engineer and his assistant when they determined how they would classify the material excavated by plaintiffs. Plaintiffs were accorded their full rights if their complaints of improper measurement and classification were heard and honestly investigated and decided. They had no more right to be present at the conference between the engineer and his assistant than has a litigant in court to be present when the judges or the jury confer on his case.

There is no merit in the complaint that the engineer computed the rock from a profile made by a draftsman in Toledo, who never saw the work. The data from which the computation was made were approved by the engineer. The computation was made by him. As well might it be said that he could not dictate his estimates to a stenographer, and sign them after they had been written on a typewriter. The real question raised by this complaint, after all, is simply this (and it has already been sufficiently discussed): Do mistakes in the computation of the engineer justify a disregard of his estimate ?

But, in my judgment, the testimony of the plaintiffs that the engineer declined to make an estimate on the ground that “it might scare the city fathers,” saying that he would “wait until we got scattered around on the outside trenches, and then they wouldn’t know where we were, or what the estimate was for, ” together with the fact that the rock was not anticipated, does justify an inference that the estimate made was not .the honest judgment of the engineer. This testimony, if believed, tended to prove that the engineer had a motive for giving plaintiffs an estimate for less rock than they excavated, and that he was dishonestly influenced by this motive to violate the duty he owed to the parties to this suit to make an honest estimate in September, 1899. Surely, the jury might infer that he continued to be influenced by this motive when he gave plaintiffs their estimates, if those estimates were, as plaintiffs’ testimony indicates, altogether too small.

It is apparent from this opinion, however, that, in our judgment, the trial court erred in charging the jury:

“If, from the evidence, you find that the engineer in charge, or his assistants, did not make accurate measurements of the quantity of rock excavated by the plaintiffs, or did not make any measurement of it, or if there is so great a difference between the rock as measured by them and the amount you actually find from the evidence to have been excavated as not to be accounted for by an error of judgment, then the measurement of the rock so made by the engineer or his assistants is not binding upon the parties, and you are entitled to find the quantity of rock actually excavated from the evidence in the case.”

Also in charging them that:

" If you find from the evidence that there is a difference between the amount of rock as given by the engineer or his assistants and the measurement as given by the plaintiffs of upwards of 800 cubic yards, this difference would be so great that it could not be accounted for except by mistake or fraud, and you would have a right to determine the quantity of rock actually excavated from all the evidence in the case.”

For the reasons stated, the judgment must be reversed, and a new trial granted.

Moore and Grant, JJ., concurred with Carpenter, J.

Hooker, C. J.

I concur in the reversal of the judgment for the reasons given by my Brethren, and for further reasons. The contract between the parties plainly implies that the plaintiffs should construct a good and tight sewer, so far as materials and labor will make it by following the methods of construction prescribed by the contract. This is indicated by the provision for the testing of the pipes, and for repairs, and for liability for defects, found in general stipulations 8 and 10, and section 4 of the Duties and Powers of the Engineer, and the use for which the sewer was designed. They are as follows:

“ 8. The contractor shall have charge of and be responsible for the entire length of sewers for whose construction he has contracted, until their completion and acceptance. He shall also be held liable for any defects which may appear in the material he has furnished, or in his work, before the final payments specified herein.”
“10. Any tests which may appear to the engineer proper for ascertaining the condition of the pipes may be made use of, and the contractor will stand all damage caused by such tests. If any pipes are broken, or if cement in joints shall protrude sufficiently to form an obstruction to any test balls or other medium adopted by the engineer, the same shall be removed and made good by the contractor at his expense. ”
“4. Although the engineer may assent to special means of prosecuting work in difficult cases, this will not relieve the contractor of the responsibility of the result.”
“If at any time after the acceptance of the work, and before the final five per cent, shall have been paid, any portion of the sewers, their appurtenances, or the surface of the street should require repairs by reason of faulty material or workmanship on the part of the contractor, the party of the first part shall notify the contractor, either in person or by mail, that such repairs are necessary, and defining the amount and nature of the work to be done. Should the contractor fail to cause such repairs to be made within ten days after such notice, the party of the first part shall have the right to purchase materials and employ men to execute the said repairs, and the cost of the same shall be deducted from the moneys due the contractor, or, from the insufficiency of said retained sums, shall be a charge upon the bond attached to this agreement. ”

Section 3, art. 8, of the specifications provides:

“3. Sewer trenches must be kept clean and free from water by the use of a pump, pail, or sponge during the process of the work, as no pipe shall be laid in the water.”

Section 1, art. 9, provides:

“1. All pipes must be kept thoroughly clean, and no water will be allowed to run through them during the construction of the sewer, unless with the permission of the engineer.”

Section 3, art. 9, provides:

“ 3. When the trench is left at night, or pipe laying stopped from any cause, the ends of the pipe must be closed by using a circular end-board closely fitting the socket end of the last pipe, said end-board to have a large number of small holes bored near the center, to prevent the trench filling with water, and to keep out sand and earth from the sewer; but in no case shall said board be inserted and water allowed to enter the sewer until the engineer*is satisfied that the cement of the joints in position is sufficiently set so as not to be injured by water coming in contact with it.
‘ ‘ This clause shall not prevent the engineer from ordering, but, upon the contrary, he may order, the end of the sewer closed absolutely tight whenever he determines that, in order to secure good results, the water should be excluded from the sewer. This shall apply to water entering the sewer or raising around the outside of the sewer. This right shall not be abridged or limited by any clause herein to the contrary.”

In view of these various provisions, I am of the opinion that when the engineer consented to plaintiffs’ laying the pipe in the water, in violation of section 3 of article 8, the city did not relieve the plaintiffs from the consequences of defective results by assuming the risk, even if it can be said that the engineer had authority to grant such privilege. The concession to lay the pipe in the water was made by the engineer (according to his testimony) because of the great expense to*the-contractors of removing the water, and he testified that it was upon the condition that they would make an absolutely tight joint. It is evident that it was a favor, and it is not inferable that he or the city intended or were understood by the plaintiffs ■to consent to accept a defective sewer. The contractors must be presumed to have known that they could not make a tight sewer in that way, and in fact testified substantially to that effect. Moreover, the contract expressly provides that, “although the engineer may assent to special means of prosecuting work in difficult cases, this will not relieve the contractor of the responsibility of the result.” The evidence shows this to have been intended for a sanitary sewer, which plaintiffs knew must be tight to be of value, for they so testified.

Again, the provision that “no water will be allowed to run through them \i. e., the pipes] during the construction of the sewer, unless with the permission of the engineer,” which is relied on to support the claim that by so consenting the city waived the express provision that the pipe must not be laid in water, is susceptible of another construction, especially when read in connection with section 3 of the same article (9):

“3. When the trench is left at night, or pipe laying stopped from any cause, the ends of the pipe must be closed by using a circular end-board closely fitting the socket end of the last pipe, said end-board to hav¿ a large number of small holes bored near the center, to prevent the trench filling with water, and to keep out sand and earth from the sewer; but in no case shall said board be inserted and water allowed to enter the sewer until the engineer is satisfied that the cement of the joints in position is sufficiently set so as not to be injured by water coming in contact with it.
“ This clause shall not prevent the engineer from ordering, but, upon the contrary, he may order, the end of the sewer closed absolutely tight whenever he determines that, in order to secure good results, the water should be excluded from the sewer. This shall apply to water entering the sewer or raising around the outside of the sewer. This right shall- not be abridged or limited by any clause herein to the contrary.”

The consequences appear to be very serious, setting the water back in the defective sewer and laterals for a long distance. In my opinion, there is nothing in this record that should estop the city from claiming its contract rights. See Boots v. Steinberg, 100 Mich. 134 (58 N. W. 657). It follows that, not only was there no waiver of the right to a tight sewer by the act of the engineer, but he was justified in not giving the certificate provided for by the contract.

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

Montgomery, J., concurred with Hooker, C. J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    McKEE v. CITY OF GRAND RAPIDS.
    1. Adverse Possession — Evidence—Sufficiency—Interlocking Titles.
    Where, in ejectment for part of an island in an inland river, it appeared that, for more than 20. years.before suit, defendant and its grantors had been in the actual occupancy of portions of the island, and had had the exclusive use of the remainder for such purposes as occasion required, — i. e., for fishing, grazing, recreation, the taking of ice, the holding of public exhibitions-, and the disposition of' garbage, — claiming to own the entire island, defendant’s title was established by adverse possession, though, as to the land in controversy, its paper title interlocked with the earlier title of plaintiff, under' which he was in possession of adjacent territory.
    2. Sahe^-Islands — Accretions.
    As between one claiming an island in. an inland river by adverse possession under color of title, and the owner of the adjacent mainland, accretions to the island made by dredging within a period of 15 years before suit belong to the owner of the island up to the original thread of the channel, and beyond that to the owner of the mainland.

      Error to superior court of Grand Rapids; Newnham, J.
    Submitted January 16, 1903.
    (Docket No. 58.)
    Decided May 29, 1903.
    Ejectment by James H. McKee and James Langdon McKee against the city of Grand Rapids. From a judgment for plaintiffs for a part of the land only, they bring error.
    Affirmed.

      Burlingame, Belclen & Orton and William E. Grove (Knappen, Kleinhans & Knappen, of counsel), for appellants.

      Moses Taggart (Taggart & Taggart, of counsel), for appellee.
   Moore, J.

This action is ejectment, involving title to certain portions of an island situated in Grand river known as “Island No. 3.” The plaintiffs claim title to the land in controversy through a patent issued by the United States to Henry L. Ellsworth, bearing date November 5,1833, and mesne conveyances to them. It is claimed by the defendant that the Ellsworth patent, and consequently the plaintiffs’- title, extends only to the thread of the easterly channel of Grand river, as it now exists. The defendant claims title to Island No. 3 through a patent issued by the United States to Richard Godfroy, bearing date August 10, 1810, and mesne conveyances to the said defendant. Island No. 3 is situated in the easterly half of the river, and it is the claim of the plaintiffs that it was conveyed to Ellsworth by the government patent executed to him in 1833, which did not refer to the island, and that the subsequent survey and grant to Godfroy of Island No. 3 were void. This claim was sustained by thercourt below. The defendant also claimed title by adverse possession. The jury found this claim to be-true, except as to a line 10 feet west of and parallel with the thread of the easterly channel of Grand river. Theyplaintiffs have brought the case here by writ of error.

It is the claim of the plaintiffs that the question of the legal title is settled in their favor by the case of Butler v. Railroad Co., 85 Mich. 246 (48 N. W. 569, 24 Am. St. Rep. 84). The defendant does not concede this claim, but says the decision in that case proceeded upon the theory that not only was the east bank of Grand river surveyed in 1831, but the west bank also, while in fact, as disclosed by the record in this case, the west bank and the islands in the river were not surveyed until 1837, when the islands and west bank of the river were surveyed and meandered, and that this was after the Ellsworth patent was issued, and before the Godfroy patent, and that, if this situation had been understood, the decision in the Butler Case would have been different. As before stated, the trial judge decided the question of legal title in favor of plaintiffs. For reasons which will hereafter appear, we do not deem it necessary to refer further to this question. A reference to the plats in Butler v. Railroad Co., supra, will aid in understanding the situation and make it unnecessary to reproduce them here.

The city claims to be the owner of Island No. 3. The upper portion of this island is used as a market place.' South of the center of the island, and on the west side thereof, the city has a substantial and expensive lighting plant. One of the descriptions of land for which this suit is brought extends easterly and westerly across the island north of - this plant. Some distance south of the lighting plant the city has erected, at an expense of upwards of $10,000, a crematory for burning garbage. One of the descriptions of land for which this suit is brought runs easterly and westerly across the island between the lighting plant and the crematory. About midway between the crematory and the south end of the island a railroad bridge, which spans both channels of the river, crosses the island. This bridge was built in 1881, and has a driveway beneath it, where teams can pass under it, and reach the lower part of the island. The only way to reach the island by teams is near the north end, from Oakes street. It is the claim of plaintiffs that, as owners of lots on the mainland which border on the east channel of Grand river, the lines ■of their lots extend across the island to the thread of the west channel of the river, while, as before stated, the city claims title by reason of the Godfr'oy patent and adverse possession.

The second question discussed by counsel for plaintiffs relates to that part of the charge of the trial judge reading as follows:

“A party’s possession of a single parcel or tract of land is co-extensive with his claim of title; that is, if his deed is for an entire parcel of land, and he occupies a part, either personally or by tenant, his possession extends to the whole tract described in his deed or patent. If, therefore, you find that Alcott Caldwell was in possession of a part of the island under lease of the whole, the possession of the owners of the island, through him as their tenant, would extend to the whole island, it being a single parcel of land; and such possession would be adverse to the whole world if such possession continued for 15 years, or was continued through other tenants to make in the aggregate 15 years.”

It is the claim of counsel that as the Ellsworth patent covered not only land on the east of the east channel, but the south half of the island, while the Godfroy patent purported to convey the entire island, the question of inter-locker is involved, and applies to the south half of the island; and while Caldwell’s occupancy, which will be referred to later, would establish title to the north half of the island, it would not do so as to that part of the island covered by both patents. Counsel say:

“The general rule is well settled that where a party enters, under color of title, into the actual occupancy of a part of the premises described in the instrument giving color, his possession is not considered as confined to that part of the premises in his actual occupancy, but he acquires possession of all the lands embraced in the instrument under which he claims. This is true although the land is not actually inclosed, and though the tract may be divided into two parts by a river running through it.” ‘

And as, under the Ellsworth patent, the grantee took possession of the land east of the channel, that this gave them constructive possession of the land on the island, and that this continued until they were ousted thereof by actual adverse possession. Counsel also say:

“Where a person enters into land under a deed or title, his possession is construed to be co-extensive with his deed or title, and, although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseised to the extent of the boundaries of such deed or title. This, however, is subject to some qualification; for, if the true owner be at the same time in possession of a part of the land, claiming title to the whole, then his seisin extends, by construction of law, to all the land which is not in the actual possession and occupancy, by inclosure or otherwise, of the party so claiming under a defective deed or title. The reason is plain: Both parties cannot be seised at the same time of the same land under different titles, and the law, therefore, adjudges the seisin of all which is not in the actual occupancy of the adverse party to him who has the better title.”

In order to decide whether the court erred in its charge to the jury, it will be necessary to go into the facts as disclosed by the record more in detail. Though the Ells-worth patent was issued in 1833, it does not appear that from that time until now any person claiming title thereunder was ever in actual occupancy of any portion of the island. It should be borne in mind that, until some time about 1870, the island was entirely surrounded by water. The east channel, at an ordinary stage, between the island and the land covered by the Ellsworth patent on the mainland, was i to 6 feet deep, and by various witnesses is stated to have been from 75 to upwards of 200 feet wide. As early as 1863 one Caldwell had a fishhouse on the upper end of the island, and claimed to have the right to control all of the island. He used seines in his fishing operations, both at the north end, the south end, and the west side of the island. He afterwards erected a building in which he built boats. He kept what the witnesses called a “boat livery,” keeping a large number of boats for hire. He erected an icehouse, and took ice from the channel east of the north end of the island. He kept stock upon the island, which had the run of the island. He turned stock away which he claimed was trespassing on the island. He claimed the exclusive right to fish from the shores of the island. On the trial there was stated in the language of the record:

“ Offered in evidence a tax history and records tending to show that Island No. 3 has been ássessed subsequent to the patents from the United States government separate from the assessment of the mainland opposite thereto in Ellsworth addition, and that the taxes on Island No. 3 were paid by claimants under the chain of title from Richard Godfroy, while the taxes to the land opposite thereto, in Ellsworth addition, including the property of the plaintiffs, were assessed upon the same roll separately to parties claiming title in the line from Henry L. Ells-worth, under which the plaintiffs claim.”

It was also shown that as early as June, 1855, James Miller and John T. Holmes obtained a quitclaim deed to the undivided half of Island No. 3,_ which deed was recorded the same month. Mr. Caldwell claimed that he was in possession of the island under Miller and Holmes. In November, 1873, James Miller obtained a warranty deed of the undivided one-half of the island from John F. Godfroy and wife, which deed was put upon record the next day. From this time on Mr. Miller claimed to be the owner of an undivided three-fourths of the island, and Mr. Holmes one-fourth. A written lease dated April 30, 1874, from James Miller to Mr. Caldwell, of the island, was put in evidence. Mr. Caldwell was to occupy it as a boat landing, for boats, boathouses, etc., and, in addition to a cash rent of $50, was to keep all trees on said island from damage, and see that no waste or depredations were committed. Indorsements were made on this lease up to May, 1878. Mr. Miller reserved to himself the right to use the island for shows, circuses, and public festivals. A witness having charge of Mr. Miller’s papers after his death says there were other written leases, which were afterwards lost, of prior date to the one offered in evidence, and it was shown by the books of Miller that Caldwell paid rent to him as late as June, 1886. It was also shown that Caldwell remained upon the island, claiming to be the tenant of Miller and Holmes, until his death, in 1889. In August, 1881, the railroad company paid the Miller estate $375 for the right of way across the lower end of the island, and in the same month obtained deeds of the right of way from Mr. and Mrs. Holmes and from the heirs of Mr. Miller. At about the same time one of the plaintiffs sold to the same railroad company lots on the mainland to enable it to construct the bridge and its roadbed, and at once, after acquiring these deeds, the railroad company proceeded to construet its railroad across the island, bridging both channels of the river, and is now-running its trains over said bridge and track.

As early as 1879 Miller and Holmes leased for money rent the right to cut ice along all the east shore of said island, except 10 rods south of Oakes street, for a period of five years. Ice was cut under this lease, and when it expired other leases of like character were made, and this continued as late as 1887, when one of the witnesses says the ice became unfit for use. For a portion of this time James H. McKee, one of the plaintiffs, made.a lease, giving the right to cut ice east of the center of the east channel. As early as 1880 the Kent County Sportsmen’s Club obtained from the Miller estate and Mr. Holmes, for a money rent, the right to put up a clubhouse, which was probably erected on the north half of the island. The cluh did target shooting once a week, to the south of the center of the island, shooting towards the railroad bridge, and the president of the club testified their shooting would extend over an area 30 rods square. This club used the island for this purpose for about 10 years. Before this there was a shooting butt near the railroad bridge, which was used by a militia company, which stood north of the butt when engaged in target practice. The Mohawk Club also had a lease of part of the island. As early as 1880-the city of Grand Rapids obtained from Miller and Holmes the right to use portions of the island for the purpose of dumping garbage. The wagons reached the island from Oakes street, and traveled almost every weekday nearly the whole length of the island, dumping a large portion of the garbage south of the railroad bridge, and continued to do this until the crematory was built. In the winter fewer loads were drawn, but in the summer there were frequently 30 to 50 loads a day. For a considerable portion of the time the city hired a man continuously to spread the garbage and direct where it should be deposited. Miller and Holmes let circuses and shows occupy portions of the island for a money rent. Their tents would cover a large portion of the south end. The island was not adapted to agriculture. The south portion of it could not be reached without using boats or swimming the river, except by passing over the north half of it.

The record discloses that Miller and Holmes and their tenants, from 1872, occupied not only the north half of the island, but also that portion of the island which is covered by the interlocker (so called), for all purposes for which any one had occasion to use it, — and they were many, — and occupied it claiming to be the owners of it. For more than 40 years before this suit was brought, the grantors of the city were in possession of the upper half of the island, and for 20 years were in actual occupancy of portions of the interlocker, claiming to be the owners of the entire island. Nineteen years before suit was brought a right of way was sold by them to a railroad company, and a massive railway bridge was constructed. The public must have known the grantors of the city were claiming title to the whole of the island. The case was not left within any of the exceptions to the general rule as stated in the charge of the judge. It would be difficult to imagine a case where title by adverse possession was more clearly established, where the land was not actually covered with buildings. Instead 'of leaving the question of adverse possession to the jury, the trial judge, under the decisions of this court, would have been justified in directing a verdict in favor of defendant, except as to any lands added by reason of dredging the east channel. See Clark v. Campau, 92 Mich. 573 (52 N. W. 1026); Henry v. Henry, 122 Mich. 6 (80 N. W. 800), and the cases cited therein.

This brings us to the question of whether the court erred in his charge, and in his failure to give certain of the plaintiffs’ requests, relating to the subject of accretions and relictions. The east channel was dredged in 1871 and at later times. It is claimed by plaintiffs that the water was diverted above the dredging, and that the earth lifted by the dredges was dumped along the center line of the east channel, and that as a result the east shore of the island was carried beyond the original thread of the east channel.

What we have said as to the effect of the possession of the island of those from whom the city gets title will make it unnecessary to discuss that portion of the charge relating to accretions and relictions which have existed more than 15 years. As to those which had not existed for 15 years the judge instructed the jury as follows:

“But if you find, gentlemen of the jury, that, as far as the island is concerned, the defendant has been in possession of the same adversely, but that the channel is narrower now than it was, and you should find that the narrowing of the same was not made by natural accretions to the land, and that the defendant had not been in adverse possession of the strip of land between what was then the west bank and the bank as it is now for a period of 15 yeai’s, then it will be for you to say how far from the east bank of the channel the plaintiffs (are entitled to recover. * * *
“Should you find, under the rules that I have given you, that the plaintiffs are entitled to recover for any portion of the land which lies between what is known as the trees and the west bank of the channel, you will state in your verdict, ‘We find for the plaintiffs, and fix the boundary line at-- ’, whatever number of. feet you should happen to find it to be west of the west line of Market street, regardless of whether it takes in the land or whether it does not take in the land on the west side of the channel.
“If you-should find, as I say, that the defendant has not been in adverse possession of that strip for 15 years, and that it was not made by the natural accretions that I have spoken about, then it would be for you to fix the line where the center of the channel was, and render your verdict accordingly.”

It was the claim of plaintiffs that as a result of the dredging at various times, and of the diversion of the water at the head of the island, the east channel had been very materially narrowed, and the area of the island had been very materially increased. It was the claim of the defendant that the channel was not materially narrowed. Testimony was offered in favor of these conflicting claims. It is evident from the verdict of the jury that they -accepted in part the theory of the plaintiffs in this respect. We think the judge did not err in his statement of the law which should control this feature of the case.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, O. J.

text:
    STRATTON v. THOMAS.
    Principal and Surety — Exhaustion oe Remedy Against Principal — Collusion—Equity.
    Where a judgment was obtained against a principal and his surety, and a levy made on the land of each, and subsequently, by collusion between them, the principal’s land was sold to a third person, who was ignorant of the levy, the surety could not maintain a bill to restrain the sheriff from first selling his land in satisfaction of the judgment.
    Appeal from Van Burén; Carr, J.
    Submitted January 8, 1903.
    (Docket No. 15.)
    Decided May 29, 1903.

      Bill by George Stratton against Wesley J. Thomas, sheriff of Van Burén county, Charles H. Wall, and Orson F. Stickney, to restrain the sale of certain land on execution. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Hammond & Hammond, for complainant.

      Thomas J. Cavanaugh, for defendants.
   Hooker, O. J.

George and Theodore Stratton were brothers. A replevin suit was commenced by the latter against Wall in justice’s court, and he was defeated, both in the justice’s court, and, upon appeal, in the circuit. George Stratton was surety for his brother both in the original replevin bond and the appeal bond. Subsequently Wall recovered a judgment upon these bonds against both of the Strattons, and an execution was issued and levied upon an 80-acre parcel then belonging to George, and one of 50 acres then owned by Theodore. Subsequently, and pending the levy, Theodore sold the 50-acre parcel to Stickney, who was ignorant of the levy. Upon ascertaining about it, he arranged with the sheriff to first sell the 80-acre parcel owned by George. The bill in this cause was filed by George to restrain such action, and to compel the sale of the 50-acre parcel first, upon the claim that the surety should be protected by the sale of the property of the principal. The bill was dismissed, and complainant has appealed.

The defendants claim that the Strattons collusively caused the sale to be made to Stickney, and that the complainant has not come into court with clean hands. The evidence shows that, at the time the action upon the bonds was begun, Theodore Stratton owned the 80-acre parcel, and occupied it as a homestead. It was worth about $2,000, and was mortgaged for $1,000. George Stratton then owned the 50-acre parcel, which was incumbered to the amount of $250. Before the execution was levied, the brothers exchanged properties. Theodore conveyed his 80-acre parcel to George, and received in return the 50-acre lot and a house and lot in Watervliet, into which he moved, and which he has since occupied as a homestead. He gave back a mortgage upon-the 50 acres for $1,000. Stickney paid $1,000 for the 50-acre lot, and took it subject to the mortgage, which he paid, in ignorance of the levy. George Stratton testified that he had nothing to do with the sale to Stickney, and knew nothing of it until after it was consummated; and Stickney stated that he asked him, about three weeks before the trade was made, whether he and Theodore “had made a deal yet.” Theodore testified that George had nothing to do with the deal. Our examination of the evidence leads us to the same opinion as that indicated by the learned circuit judge by bis decree. He saw the witnesses, and we have no doubt that he reached a just conclusion in the case.

The decree is affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    CRUMRINE v. AUSTIN.
    1. Contracts — Physicians—Compensation—Action to Recover.
    Defendant being ill, his physician telephoned a hospital, and was told that room, board, nursing, and the attendance of a - house physician could be had for $15 a week. Nothing was said about an operation. Defendant went to the hospital, where he was operated on and afterwards cared for by plaintiff, who was called by the house physician. In an action to recover for such services, held, that there was nothing to support a finding that they were covered by the contract referred to, and hence defendant was liable for their reasonable value.
    2. Same — Value of Services — Question for Jury.
    Plaintiff testified that his charge was reasonable, but admitted the custom of physicians to regulate their fees in such cases by the financial standing of their patients; while defendant testified that plaintiff told him, when he presented his bill, that persons who hold political jobs must pay for cases where doctors work for nothing. Held, that the reasonable value of the services was a question for the jury.
    Error to Wayne; Rohnert, J.
    Submitted January 13, 1903.
    (Docket No. 31.)
    Decided May 29, 1903.

      Assumpsit by Charles G. Crumrine against Charles H. Austin for professional services. From a judgment for plaintiff for less than the amount claimed, he brings error.
    Reversed.

      Alex. J. Groesbeclc, for appellant.

      Washington I. Robinson, for appellee.
   Grant, J.

The defendant being ill, his physician, a Dr. Schneider, advised his brother that he had better go to a hospital, and, at the suggestion of defendant or his brother, Dr. Schneider had a conversation with some one at the hospital by telephone, and was told by him that it would cost $15 a week for a private ward, and that would include room, board, nursing, and medical attendance, and he communicated this to Mr. Austin. On cross-examination Dr. Schneider qualified the above statement, made on his direct examination, by stating that he was told over the telephone that the price included the attendance of a house physician and nursing, and that nothing was said about an operation. Nothing in the testimony indicates that the nature of defendant’s illness was mentioned in the conversation by telephone.

The defendant was removed to the hospital, where he remained several weeks. He was operated on • by the plaintiff, who was called by the house physician, and he rendered him daily service by dressing his wound for a time. When the house physician did so on one occasion, defendant objected, and expressed a preference that the plaintiff should continue to dress his wound, and a willingness to pay extra if he would, and the plaintiff performed that service thereafter. Defendant paid the hospital the snm of $15 per week in advance, but was surprised to receive a bill from the plaintiff of $200 for the operation, and a total of $16? for other attention. The plaintiff testified that the price charged was reasonable, unless we are to consider it qualified by the statement that the charge in -such cases depends upon the ability to pay, and his conversation with the defendant, from which it may be inferred that physicians “regulate their fees by the financial standing of their patients,” and that “persons who have political jobs are made to pay for cases where doctors work for nothing,” which Austin stated that plaintiff told him, and plaintiff denied. The court left the case to the jury under instructions of which the plaintiff complains, and a verdict was found of $99 for the plaintiff, and he has appealed.

The court instructed the jury that the case must turn on the question whether the hospital authorities agreed with the defendant, through Dr. Schneider, to include the cost of the operation in the price given of $15 per week; if they did, the plaintiff’s recovery must be limited to the value of the services rendered after defendant requested him to attend to the duties which the house physician had taken up; if, on the contrary, surgical attention was not included in the bargain, the plaintiff should recover the reasonable value of his services, and the jury should in that case “be guided in the values as put upon the services by the plaintiff, as the reasonableness of such charges was in no way contradicted by any testimony that would alter that as a basis for computation of the damages.” The verdict indicates that the jury must have found that the contract was made as claimed by the defendant. The plaintiff claims that the court erred in permitting the jury to so find, for the reason that there was no evidence of such a contract.

We have already seen that the only witness to this talk was Schneider, and that he admitted that the attendance promised was that of a “house surgeon and nursing.” Schneider was defendant’s agent, and neither the hospital nor the plaintiff is bound by any misapprehension on the part of Schneider, or misunderstanding growing out of his inaccurate report to the defendant of the terms offered. We must conclude from the undisputed testimony that the attendance of a house surgeon only was offered, and that neither party spoke of an operation. There is nothing to indicate that the hospital authority who talked to Schneider had any reason to suppose an operation was contemplated, and, if Schneider had one in contemplation, it was not mentioned. He asked for the house surgeon, and it is reasonable to suppose he knew the duties of such an officer; also that his patient would be expected to enter the hospital subject to its rules, whatever they were, except as they might be modified or affected by the conversation. The by-law introduced shows .that the house surgeon is not given charge of patients. The circuit court could properly have said that the contract was not proved as claimed by defendant. The defendant would then be liable for the reasonable value of the services rendered. The plaintiff was injured by the instruction which permitted the jury to exclude the value of the operation and early attention from the sum allowed. On the other hand, we think that the reasonable value of the services was a question for the jury.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.