Слике страница
PDF
ePub

tice that they had overlooked some clos- | anything has been done from which the ets; and they sent men, and sponged these off and heard no more complaint until they called upon defendant to settle, who then claimed that the defect in the walls still existed, and that the cove work was not according to specifications. The plaintiffs admit payment to them of $1,000, but at what time it was made does not appear from the record.

The contract and specifications were introduced by the plaintiffs upon the trial; and the most important question in the case is raised by the eighth request of defendant, that the court instruct the jury as follows: "Under the contract in evidence, it is provided that, before any payment can be demanded by plaintiffs, they shall obtain a certificate from the architect. This they have not obtained, and your verdict should therefore be for the defendant." It is claimed by defendant's counsel that the failure of plaintiffs to complete the work to the satisfaction of the architect, and procure his certificate, is a complete defense to this action. I think the point is well taken. There is no claim upon this record that the architects have been guilty of any fraud, or that there had been any collusion between them and the defendant. There is no pretense that the plaintiffs have applied to or requested the certificate required by the contract. When parties capable of contracting have deliberately entered into a written agreement in which, by all just rules of construction, the certificate of the architects is made a condition precedent to a right of action, such condition must be performed or its requirements waived. The authoriThe authorities holding contracts like the one in question here valid are numerous. Leake, Cont. (2d Ed.) § 640; Benj. Sales, (3d Amer. Ed.) § 575; Morgan v. Birnie, 9 Bing. 672; Grafton v. Railroad Co., 8 Exch. 699; Clark v. Watson, 18 C. B. (N. S.) 278; Goodyear v. Mayor, 1 Har. & R. 67; Ferguson v. Galt, 23 Ú. C. C. P. 66; Smith v. Briggs, 3 Denio, 73; Railroad Co. v. McGrann, 33 Pa. St. 530; Reynolds v. Caldwell, 51 Pa. St. 298: O'Reilly v. Kerns, 52 Pa. St. 214; Gray v. Railroad Co., 11 Hun, 70; Tyler v. Ames, 6 Lans. 280; Spring v. Clock Co., 24 Hun, 175; Smith v. Brady, 17 N. Y. 173; Wyckoff v. Meyers, 44 N. Y. 143; Wangler v. Swift, 90 N. Y. 38; Tetz v. Butterfield, 54 Wis. 246, 11 N. W. Rep. 531; Kirtland v. Moore, (N. J.) 2 Atl. Rep. 269; Railway Co. v. Maher, 48 Ark. 522, 3 S. W. Rep. 639; Stose v. Heissler, (Ill.) 11 N. E. Rep. 161; Boettler v. Tendick, (Tex.) 11 S. W. Rep. 497; Byrne v. Sisters of St. Elizabeth, 45 Ñ. J. Law, 213; Elliott v. Assurance Co., L. R. 2 Exch. 243. It has also been held that if the certificate is required to be in writing there can be no parol approval. Lamprell v. Billericay Union, 3 Exch. 283; Russell v. Bandeira, 13 C. B. (N. S.) 149; Goodyear v. Mayor, 1 Har. & R. 67. Upon this point the authorities are not uniform, and we are not called upon to decide it in this

case.

It is the settled law in this state that when a party fails to comply substantially with an agreement, unless it is apportionable, he cannot sue upon the agreement, or recover upon it at all. But when

other party has received substantial benefit, and which he has appropriated, a recovery may be had upon a quantum meruit based on that benefit. And the basis of this recovery is not the original contract, but a new, implied agreement deducible from the delivery and acceptance of some valuable service or thing. Allen v. McKibbin, 5 Mich. 454. The plaintiffs appeal to this principle, and claim that they are entitled to recover, under the common counts, although they have not obtained the certificate of the architects; and they rely upon Wildey v. School-District, 25 Mich. 422, in which this court held that the architect was not made the sole inspector or judge of the work as it progressed, but that a superintendent was expected to be, and was in fact, chosen by the district, and that it was a reasonable inference that the superintendent was expected to supervise the work as it progressed, and to express his dissatisfaction with any portion not in compliance with the specifications. His powers were made, by the contract, as broad as those of the architect, and there was no consent in the contract that his decision should be subject to reversal or review by his nominal superior; and for that reason it was held that whatever passed under his 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 that 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. And it was also said that, “in a clear case, where the contractor had undertaken, in defiance of the superintendent, to force upon the district one thing, where they had bargained for another,-as, for instance, one kind of roof where another was agreed for,-unless there was a subsequent assent to accept it, express or implied, we do not think the district would be held liable to pay for the thing substituted at all. The district is not to be forced to take what it never wanted or bargained for, on any pretense that it will answer their purpose as well, or that, even it will not, it is still of some value, and should be paid for accordingly. I do not think the case of Wildey v. SchoolDistrict is an authority in support of plaintiff's contention. The facts are entirely different. Here there was no superintendent, aside from the architects, agreed upon, and no approval, express or implied, of the architects, of the work as it progressed, or after it was completed. It is true that, as to the right of a party, in general, to recover upon the common counts, subject to a recoupment of damages, when he has not strictly complied with his contract, the court expressed its adherence to the views expressed in Allen v. McKibbin; but the right does not exist in all cases, as was explained in that case, and more particularly in the later cases. Martus v. Houck, 39 Mich. 431, Fildew v. Besley, 42 Mich. 100, 3 N. W. Rep. 278. In Martus v. Houck we stated what was held in Wildey v. School-District; and upon page 436 the same judge who wrote the

opinion in that case, referring to it, said: | "We held, explicitly, that one contracting for a building to be put up according to certain specifications had a right to have what he bargained for. Unimportant vaUnimportant variances may be overlooked or compensated for under a variety of circumstances which are not in question here, but departures from the contract which are susceptible of correction no one can be compelled to overlook or waive. Protection to equities cannot require it, and the acceptance of such a doctrine as the plaintiff here insists upon would take from an unscrupulous contractor the chief inducement to keep his promises. What is it to him whether or not he lives up to his agreement, if in any event he may collect for such performance as he tenders, and if the party contracting with him has no choice but to take at some price the building the contractor has seen fit to put up? The sanction the law would give to contracts under such a doctrine would, as nearly as possible, be worthless."

The

These parties are bound by the contract they entered into. The plaintiffs agreed to do the work, strictly in accordance with the plans and specifications, for a round sum. The defendant agreed to pay plaintiffs from time to time, as the work progressed, upon the plaintiffs' obtaining a certificate from the architects, deducting 10 per cent., until the job was completed and accepted. The balance and such percentage was to be paid, on the architects' certificate, after the expiration of 30 days after acceptance and approval by the architects and owner; and before each and every payment should be made a certificate was to be obtained from and signed by William Scott & Co., architects, to the effect that the work has been done, and materials have been furnished, in strict accordance with the agreement, drawings, and specifications, and that he considers the payment properly due. fact is undisputed that the plaintiffs have not obtained the certificates required by the contract. They have not applied to the architects for such certificate. They have not obtained the approval or acceptance by the architects of the work. They have not performed it according to its terms. On the contrary, they were notified by the architects that it was not completed according to its terms, and certain defects were pointed out. These defeets the plaintiffs claim to have been remedied. This is disputed by defendant. by defendant. But, if plaintiffs did remedy the defects, they did not do so in the ways suggested by the architects; and they never have obtained the certificate of the architects after they claim the defects were remedied. The plaintiffs' assertion that they had remedied the defects did not give them a right of action. They could not substitute their assertion for the architects certificate | agreed upon between the parties; nor could they change the condition under which the defendant agreed to pay the balance 30 days after the architects' certificates of approval, and of its being completed according to the contract to an agreement to pay without the certificate, and on their own assertion that it was completed ac

cording to contract. As was said in Clark v. Watson, 18 C. B. (N. S.) 285: "This is, in effect, an attempt on the part of the plaintiff to take from the defendant the protection of their architects, and to substitute for it the opinion of a jury."

The principles laid down in Allen v. McKibbin, do not apply to cases where, the parties have by their agreement made some act or fact a condition precedent to payment, unless the other party has waived the condition. The waiver may be express, or it may be implied from facts and circumstances, as where the party relying upon the condition has accepted or appropriated the property or fruits of the labor of the other party. There is no evidence in the record before us that can be construed into a waiver of the conditions precedent contained in the contract on the part of the defendant. When a person contracts with another to build, or to do some portion of the work in constructing buildings, upon real estate belonging to the owner of such real estate, his taking possession after the other has left the premises cannot be construed as an unequivocal acceptance, although he thereby takes possession of, and appropriates to his use and benefit, the labor or materials of the contractor. He must do so, as a matter of necessity, in many cases, or suffer the property to stand idle and unused, to the great detriment of all parties, and especially so of the owner. The most that can be said, in such cases, is that the act of the party, and all the circumstances, may be taken into consideration in the determination of the question whether there is an implied waiver of the condition precedent. Under the testimony appearing in this record, the fact of the defendant's taking possession was not such an acceptance as relieved the plaintiffs from the terms and condition of the contract requiring them to obtain the architects' certificate before they were entitled to payment.

As there must be a new trial, it may be well to notice one other matter of controversy between the parties, and that is with reference to substituting the soap-stone finish in the coves for pebbles and shells, as required by the specifications. This substitution cannot be held to have been made with the owner's consent previously obtained. Mr. Crittenden was not defendant's agent for the purpose of making changes in the plans and specifications, and no authority was shown for him to do so. The contract provided that such changes should be made in writing signed by the owner and architect. The change was not made in writing, and Mr. Crittenden was neither owner nor architect. Whether this provision of the contract had been waived, and the substitution ratified, will be, upon a future trial, a question of fact, under all the circumstances, to be submitted to the jury. If any question exists as to what the specification requires, the contract provides that the architects shall determine as to their meaning; and this power cannot be taken away from the architects agreed upon, and left to the construction of other plasterers or architects The court erred in permitting this to be done upon the trial.

The judgment must be reversed, and a new trial is ordered. The other justices concurred.

(79 Mich. 620)

BROCKWAY V. PETTED et al. (Supreme Court of Michigan. April 11, 1890.) INTOXICATING LIQUORS-BOND-FILING-ESTOP

PEL.

1. Where the sureties on a liquor bond have signed and justified, and the bond has had the approval of the town board indorsed upon it, as required by How. St. Mich. § 2278, but has not been filed with, or delivered to, the county treasurer, they cannot deny their liability on the bond on the ground of the failure to file it, as that is a mere clerical act, and not essential to the validity of the bond.

2. Where the bond is afterwards filed, it relates back to its date, and covers the time prior to its filing.

3. The sureties on such bond are estopped to deny the recital therein that the principal, at the time of its execution, was professing to carry on the business of selling liquor.

Appeal from circuit court, Kent county; WILLIAM E. GROVE, Judge.

William F. McKnight and Turner & Carroll, for appellants. Myron H. Walker, for appellee.

GRANT, J. Plaintiff sued defendant Robert Patterson for injury sustained by her in consequence of his having sold liquor to her husband. She obtained judgment, and thereupon brought this suit upon the liquor bond signed by defendant Patterson as principal and the other defendants as sureties. She recovered judgment in the court below. The bond was dated May 5, 1886, and was the bond required by How. St. § 2278. The bond was accepted and approved by the town board May 12, 1886, and their approval indorsed thereon May 15th. It was filed with the county treasurer May 27th. The act of Patterson for which plaintiff recovered her judgment occurred between the date of the approval of the bond and its filing with the county treasurer. Defendants insist that no liability could be incurred under this bond until it had been filed or delivered to the county treasurer. This is the principal question in the case.

1. This is a statutory bond, and must be interpreted according to the intent and meaning of the legislative enactment. It runs to the people of the state of Michigan. Under the statute, the sureties must sign and justify. It must be approved by the town board, and their approval indorsed. It must then be filed with, or delivered to, the county treasurer. No discretion in regard to the receipt and filing is lodged in the county treasurer. When presented, with the approval of the town board indorsed thereon, he is bound to receive it and file it. The filing is clearly for the benefit of the public, and those who may be entitled to remedies under it. The word "delivered," used in this statute, was clearly not intended to be used in the legal sense of a delivery necessary to the execution of a contract. The fact that, in the statute, the word "filed" is used interchangeably with "delivered," appears to me conclusive on this point. The duty of the treasurer is merely clerical; not in

tended as an act to give effect to the bond, but to make and perpetuate a record of it. "Delivery," in the sense that it is necessary to the complete execution of a contract, implies a discretion both as to tender and acceptance. A deed may be properly signed, witnessed, and acknowledged, but it is not executed until delivery. The grantor may or may not deliver it as he chooses. When the statute provides that a bond shall be deposited, filed with, or delivered to, some public officer, to whom it gives no discretion in the matter, it makes his duty purely clerical. We must, therefore, look to the statute for some other time fixed by it when this bond can be regarded as executed, and given legal effect. That time, in my judgment, is fixed upon the approval of the bond. This court has said that such a bond is valid when accepted and approved by the common council. People v. Laning, 41 N. W. Rep. 424. The defense is based upon the theory that there can be no liability as against the sureties until the principal had complied with all the provisions of the law prerequisite to his commencing the business. If defendant Patterson had filed his bond the day after its approval, but failed to pay the tax, the defendants might with equal propriety claim this as a defense, and say, as they now say, that they had a right to believe that their principal would comply with the law before entering upon the business. If Patterson had left this bond with the town board, to be filed by them with the treasurer, and the board had failed to do so, would this defense then be urged? What difference can it make whether Patterson gave the bond to some one else to file with the treasurer, or took it himself for that purpose? He was then carrying on the business. His bond said so. He intended to file it, and did file it afterwards. The case of Hyatt v. Sewing-Machine Co., 41 Mich. 225, 1 N. W. Rep. 1037, decides, simply, that a surety is not presumed to have meant to become answerable for acts committed before he signed the obligation. The language of the bond is not given, but the court say "the terms are all future." The principle is recognized in Bruce v. State, 11 Gill & J. 382. That was a suit upon a sheriff's bond. The constitution of Maryland provided that no sheriff should be qualified to act until he had given the bond, and the stat, ute provided before whom, and when, such bond should be taken. The court says: "The bond is made. It is the obligatory act of the signers when, being signed, it is presented to the court or judge, etc., and the sureties are adjudged sufficient From that moment it is the operative act and deed of the parties, and not before." The case of McMicken v. Webb, 6 How. 293, involved the liability of the signers to a promissory note. So is also the case of Burson v. Huntington, 21 Mich. 430, and Bullock v. Taylor, 39 Mich. 137. They have no application to the case at bar. In Com. v. Kendig, 2 Pa. St. 448, the suit was upon the bond of a justice of the peace. It was signed upon Sunday and delivered on Monday to the prothonotary. The court says: "Granting that the bond was signed and delivered on Sunday, yet I am by no means

*

*

|

expressly provided. But it by no means follows that this rule extends to statutory bonds, given for the protection of third parties, covering a period of time fixed by the statute. The statute requires that every liquor dealer shall yearly execute such bond. It continues in force for one year from the 1st of May. It was the evident intent of these parties to comply with this provision. They signed the bond on the 12th of May, and deliberately dated it back to the 5th of May. It recited that Patterson then professed to carry on the business. They are presumed to know the law, and to have contracted with reference to it. They deliberately made their bond to speak from the 5th. As a matter of fact he was carrying on the business. The only fair conclusion to be drawn is that they intended the bond to relate back to and cover the period from its date. In State v. Finn, 23 Mo. App. 290, the sheriff was elected in November. On November 21st he gave the bond required by the statute. November 29th the court, for some reason which does not appear, ordered a new bond to be given in lieu of the first. Suit was brought for money received by the sheriff between the 21st and the 29th. The sureties were held responsible for the sheriff's conduct during his entire official term. In Ætna Ins. Co. v. American Surety Co., 34 Fed. Rep. 291, the bond sued upon was dated June 15th, and was to run for the term of 12 months ending June 15th, the following year. It was not delivered or accepted until July 29th. The court held that the liability of the surety accrued by relation as of its date, and that the sureties were liable for all defalcations prior to July 29th. In that case the parties in the bond fixed the term. In this case the statute fixes it.

satisfied that it is vold as against those who are injured by the official misconduct of the justice. They are innocent parties, and ought not to be affected by the folly or turpitude of the prothonotary and obligors. Such a construction of the act would enable the obligors to take advantage of their own wrong as against persons who cannot by any possibility protect themselves." Does not the same reasoning apply very forcibly to this case? The above are all the authorities cited by the defendants in support of their contention. One of them directly sustains the rule contended for by plaintiff, and none of the others are in conflict with it. The case of State v. Toomer was a suit upon a bond of a master in equity. The statute prescribed several prerequisites to entitle the master to enter upon his duties, one being that he should not enter upon them until he had recorded in the clerk's office a certificate from commissioners that he had lodged in the treasury his bond, and that if he failed to comply with these requisites the office was declared vacant. This was held to be no defense to an action against the sureties. 7 Rich. Law, 216. His official acts as to third persons were held valid, and for official defaults his sureties were liable. A bond is clearly complete, and becomes operative, when all the discretionary acts necessary to give it validity have been performed. When these have been performed, and the principal commences the business mentioned in the bond for the proper performance of which the sureties have become obligated, the bond is then in full force, and the liability of the sureties attaches. In this case the bond was executed, the principal was carrying on the business, and it is fair to presume that his sureties knew it. I find no principle, moral or legal, upon which they can be relieved. If defendant's contention be correct, then, if Patterson had paid the tax, and the treasurer had issued to him the receipt without the filing of the bond, the sureties would be relieved from liability. To all such claims it is a sufficient answer that it is against the unlawful acts of Patterson that these bondsmen expressly obligated themselves. The object of the statute was to secure the payment of damages "that may be adjudged to any person for injuries inflicted upon them, either in person or property or means of support, by reason of his [the liquor dealer's] sell-Where a replevin bond recited that it was ing, furnishing, giving, or delivering any such liquors. The right to recover such damages is not made dependent upon the fact that the liquor dealer is legally engaged in the business. As well might it be claimed that the bondsmen have the right to presume that liquor dealers will not sell on the Fourth of July, or any other day upon which the sale is prohibited, and therefore that they are not liable when injury results.

2. Upon the filing of the bond, it related back to its date, and covered the time prior to its filing. The rule is well settled that contracts of suretyship affecting ordinary business transactions take effect only from the date of their execution, which includes delivery, and that they will not be given retroactive effect unless so

3. It is the established rule that sureties are estopped to deny the facts recited in their obligations, whether true or false. Brandt, Sur. §§ 29, 30. Where the bond recited that A. was appointed paymaster, it was held that he and his sureties were estopped to deny that fact. U. S. v. Bradley, 10 Pet. 365. Where the bond recited that B. was appointed a wharfinger, it was held that his sureties were estopped to deny it. People v. Huson, 20 Pac. Rep. 369. It is also held immaterial whether there be any such office as is set up in the bond. Rogers v. U. S., 32 Fed. Rep. 890.

signed by S., the principal, who was in
fact dead at the time, the sureties were
held estopped to deny that S. had signed
it. Collins v. Mitchell, 5 Fla. 364. Neither
Patterson nor his sureties can take ad-
vantage of his neglect to file the bond.
His failure to do so was his own wrongful
act. Stevens v Treasurers, 2 McCord, 107.
In that case the sheriff could not, by law,
enter on the duties of his office until he
had filed a certificate from commissioners
that he had executed and filed a bond
with the treasurer. The court says:
"Neither he nor the sureties can take ad-
vantage of his wrongful neglect.
The approval by the commissioners, the
certificate,
are no more than the
mere modes of giving, examining, and per-
petuating the bond. These are not of the

essence, and constitute no part of the obligation, of the contract." In the case at bar the defendant's sureties had done all that the law required, and all that they could do, to complete the bond. They had signed and justified to it. It had been approved. They left it with their principal, Patterson, to file. It recited that he was then professing to carry on the business. They are, therefore, estopped, both by law and reason, to make this defense. It is notorious that liquor dealers, by the implied, if not the express, assent of the officers charged by the law with the duty of enforcing it, are often permitted to carry on the business until they can raise the money to pay the tax. It would, in my It would, in my Judgment, be a direct violation of the spirit and intent of this law to relieve them and their sureties from liability upon their bonds under such circumstances. To hold them liable gives the protection which the law intended to innocent parties, who are not, and cannot well be, charged with any duty in regard to the execution or filing of the bond. To relieve them would result in opening the door to intentional as well as careless evasions of the law.

4. The court correctly rejected the offer of defendants to show that after they heard of the injury to plaintiff's husband they demanded the surrender of the bonds, and that Patterson promised to surrender them. Judgment affirmed, with costs. The other justices concurred.

(80 Mich. 67)

In re ORTMAN.

(Supreme Court of Michigan. April 11, 1890.) CONTRACT-BILL OF SALE-CONSTRUCTION.

A land-owner made an executory contract for the sale of standing timber, licensing the purchasers to cut the timber, but retaining the title thereto until the purchase money should be fully paid. Subsequently, the contract having been assigned, the owner agreed to execute a bill of sale without other security than the notes of the assignee. Held that, on the execution of an absolute bill of sale, acknowledging the receipt of the purchase money, the title to the timber vested in the assignee, though the warranty clause contained an exception subjecting the bill of sale to the "provisions and conditions" of the executory contract. Appeal from circuit court, Manistee county, in chancery; J. B. JUDKINS, Judge.

The Manistee Salt & Lumber Company, after the death of its president, Michael Engelmann, being insolvent, made an assignment, naming E. Golden Filer as assignee. Mr. Filer signified that he would not accept the trust, and a bill was filed by the Wisconsin Marine & Fire Insurance Co. Bank against him and the Manistee Salt & Lumber Company for the appointment of a receiver to administer the estate. Otto Kitzinger was appointed such receiver, and James Gamble, on petition of some of the creditors, was afterwards appointed co-receiver. Subsequently, Charles L. Ortman filed his petition, claiming title to timber that had been cut by the insolvent company on his land, and praying that the fund arising from the sale of the timber be set apart for the payment of his claim. On the hearing an order was made denying his prayer, and declaring him one of the general creditors. Ortman appeals.

McAlvay & Grant, for appellant. Uhl & Crane, for appellees.

CHAMPLIN, C. J. The petitioner presents a claim against the receivers of an insolvent estate, praying that he may be paid the full balance remaining due of the purchase price of certain pine and ash timber which he claims to have sold by contract, retaining title in himself until the purchase price should be paid, the avails of which timber he claims is in the hands of the receiver.

The important question is whether he has parted with his title to the timber. A history of the transactions, stated as briefly as possible, is necessary to a proper understanding of the question raised. On January 2, 1886, Charles L. Ortman was the owner of large tracts of land in Michigan, and among them the lands upon which the timber in question was standing. On that day, being indebted to the bank of which Mr. Edward H. Butler was president, and desiring to secure the bank, he conveyed the tracts of land by warranty deed to Mr. Butler, who held them in trust and as security for the bank. On December 7, 1886, Ortman entered into a written contract with Eugene Chappell and D. J. Smith, in which he agreed to sell to them all the pine and ash timber then growing, standing, and lying upon certain described lands in township 20 N., range 11 W., for $14,000. Four thousand six hundred and sixty-seven dollars was to be paid down, and the balance, $9,333, in accordance with a promissory note, with interest at 7 per cent., 18 months from date. It was mutually agreed that the title to the timber should remain in Ortman, and should not pass to Chappell and Smith until the note, and interest thereon, should be fully paid and satisfied, and that upon such payment the title of the timber should pass to Chappell and Smith. It was stipulated that Chappell and Smith should have three years from the 1st of January, 1887, to cut and remove the timber, and that after January 1, 1890, all the pine and ash timber then left on the land should revert to Ortman, and they should have no right to cut and remove timber after that date. They also agreed to pay the taxes after the year 1886. Such were the main features of the contract, so far as affects the question in dispute. It will be seen that there was an implied permission to enter upon the lands and cut and remove pine and ash timber at once, but the title to the timber so cut remained in Ortman until the note should be fully paid; that when payment was fully made the title was to pass to the purchasers. The rights of the parties were not very definitely fixed or guarded. There was no restriction against cutting more than a certain quantity, without paying in proportion as such cutting would lessen the security; and the title of Ortman would be of little security after the lumber had lost its identity by being thrown upon the market, and mingled with other timber of like grades. In August, 1887, R. A. Seymour negotiated with the purchasers under the contract, and by a memorandum of agreement dated August 19, 1887, Ortman made an agree

« ПретходнаНастави »