Ryan v. City of Dubuque engineer's office. The city reserves the right to change the grade of said street, thereby increasing or diminishing the amount of grading as estimated; and if, from any change of grade or other cause, the amount of grading is changed, then the amount due and to be paid under this contract shall be increased or diminished in same proportion. The plaintiff's bid was $2,679.60. He has been paid $1,201.20, and in this action seeks to recover the balance. During the progress of the work, changes were made by the engineer. which increased the amount of excavation to 8,464 cubic vards, and diminished the amount of filing to 5,880 cubic yards, and thereby greatly enhanced the expense of performing the contract, as the cost of cutting was about seven times that of filling. Compensation is claimed by plaintiff according to this increased cost of the grading done, and, if this be not allowable, then in proportion the grading done bears to that estimated. The city insisted that under the contract a cubic yard of earth excavated and used in filling should be counted but one cubic yard of grading, and that, so computing, the plaintiff had been fully paid. This appears to have been the view taken by the district court in sustaining the defendant's demurrer. 1. The rate of compensation in event of a change in grade is very clearly fixed by the specifications. It was to be increased or diminished in that proportion the amount of grading done bore to that estimated. There is no ambiguity or room for misunderstanding in the language employed. True, plaintiff avers that the word "amount," in the phrase "amount of grading is changed," contained in the contract, has a customary meaning among contractors at Dubuque, when used in grading contracts relating to different classes of work, as work, value, or cost, as distinguished from quantity or number of cubic yards, and that the parties to this contract so understood it. But these are very simple words, each having a popular and well-defined meaning, not similar to the other; and it is somewhat remarkable, if true, that the contractors of that locality should so pervert the English language, without conceivable excuse for so doing. Conceding this to be possible, however, the language of the specifications precludes such a conclusion. There the amount of grading is in fact estimated in cubic yards, and to the amount of grading as thus estimated the phrase mentioned unmistakably refers. To say that, under such circumstances, "amount" means cost, value, or work, is to impute a meaning contrary to the evident sense intended, the context, and its ordinary use. That this may not be done is conclusively settled by authority. Willmering v. McGaughey. 30 Iowa, 205; Cash v. Hinkle, 36 Iowa, 624; Silberman v. Clark, 96 N. Y. 522; De Witt v. Berry, 134 U. S. 306, 10 Sup. Ct. 536, 33 L. Ed. 896. 2. The word "grading" includes cutting as well as filling. Technically it is the reducing of the surface Ryan v. City of Dubuque of the earth to a given line fixed by the city as the grade, and may involve filling or excavating, or both, as shall be necessary to accomplish that object. As said in Smith v. Washington Corp., 20 How. 135, 15 L. Ed. 858, "Hills must be cut down, and hollows filled up, or, in other words, the road be graded or 'reduced to a certain degree of ascent or descent,' which is the proper definition of the verb 'to grade.'"' It will be observed that both the cut and the fill were included in the "amount of grading," as estimated and contained in the specification; and this phrase, when used in the body of the contract, must be accorded the same meaning. That was evidently the intention of the parties. Separately considered, the amount excavated was a part of the grading, regardless of the place to which the earth was taken; and so of the fill, no matter from whence the earth came. And it would seem that, where both are mentioned as making up the "amount of grading," both should be measured, in determining the compensation stipulated therefor. It may be that, as held in City of Leavenworth v. Rankin, 2 Kan. 357, where compensation for grading is to be by the cubic yard, and all the earth excavated is used in filling, it should be measured but once. But here compensation is based on the entire "amount of grading,' which, according to the specifications and the contract, included both the excavation and fill contract. The parties having employed the phrase as including both, it should be so treated in estimating the price to be paid for the work actually done. But the defendant asserts that the method of compensation is fixed by the contract, in providing that "quantities in excess only shall be estimated." That is, as in the estimate the filling is the more, and, in the grading done, the excavation was the greater, payment should be that part of the original price that the latter is of the former. This sentence follows provisions relating to the excess of material excavated over that necessary for filling, together with the place to which it is to be hauled, and the distance, and is just before the reservation of such material by the city. To such excess it evidently refers. The wording indicates that a difference was intended, and not the greater of two numbers. While the purpose of the sentence, in its connection, is not clear, it cannot be construed as meaning the total amount of excavation or deposit, as contended, without materially enlarging its purport. The excess of the cut over the fill is the one less the other, and not the larger, is the difference between the amount of earth placed upon that taken off the entire surface in making the improvement. Besides, it is evident from the subsequent conditions that, in determining what proportion of the amount bid should be paid in event of a change, the grading actually done and that estimated, which, as we have seen, included both the cut and fill, were to be considered, and compensation made accordingly. Without Smedley v. City of Grand Haven adding to the contract, it cannot, in the absence of any averment of custom or usage, be accorded the meaning contended for by appellee. The plaintiff is entitled to that proportion of his bid that the total amount of excavation and filling bears to the total amount estimated. Reversed. GRANGER, C. J., not sitting. SMEDLEY et al. v. CITY OF GRAND HAVEN. Contract by Mayor*-Consent of Council-Action-MandamusCertiorari-Jurisdiction.-Plaintiff, an attorney, began mandamus proceedings against the clerk of the common council of defendant city to compel him to issue a warrant for attorney's fees allowed by vote of the mayor and four members of the common council as expenses in prosecuting certain mandamus suits for the mayor. The case was removed by certiorari to the supreme court, and with it were sent the files and proceedings in another mandamus suit, brought by the four remaining aldermen against the mayor to set aside his action in voting on such allowance of attorney's fees in his own favor. This latter suit, in which plaintiff had defended the mayor, had never been removed to the supreme court. Plaintiff sued to recover for legal services rendered the mayor in the circuit court and supreme court in defending the mandamus suit of the aldermen against him. Held, that plaintiff could not recover for services rendered therein in the supreme court, since the case had not come before that court. Same Hiring Special Counsel-Emergency-Question for Jury.An attempt was made by the common council of a city, acting under the city attorney's advice, to transfer certain money of the city from one fund to another in violation of the city's charter. The mayor vetoed the resolution therefor, but the council's clerk refused to file the veto message. Mandamus proceedings were begun by the mayor against the clerk and common council to compel its filing, and the mayor was sustained. Other suits arising from these matters were brought both by and against the mayor, in all of which the city attorney was actively opposed to him. The mayor employed plaintiff as legal counsel in this suit, who seeks to recover for services rendered under such employment. Held that, under these facts, it was error to direct a verdict for defendant, since it was a question for the jury whether there was such an emergency as would justify the mayor in employing counsel, without the consent of the city council, required by the charter, so as to make the city liable for attorney's fees thereby incurred. Error to circuit court, Ottawa county; Philip Padgham, Judge. Action by Charles O. Smedley and another against the city of Grand Haven. Judgment for defendant, and plaintiffs bring error. Reversed. Smedley & Corwin, in pro. per. Walter I. Lillie, for appellee. *See note to Holder v. City of Yonkers, 1 Mun. Corp. Cas. 167; City of Chicago v. Williams, 3 Mun. Corp. Cas. 110; Mayor of Nashville v. Sutherland, 19 L. R. A. 619, and note; Huron Waterworks Co. v. City of Huron, 30 L. R. A. 848; State v. City of Pullman, ante, p. 299. Smedley v. City of Grand Haven LONG, J. This is an action of assumpsit to recover for legal services claimed to have been performed by Charles O. Smedley for the city of Grand Haven, and such claim assigned to plaintiffs. The case was tried before a jury, who returned a verdict of no cause of action, by direction of the court. The bill of particulars is set out in the record. About $130 of the claim is for services rendered the city in the case of Bishop v. Baar, mayor of defendant city, in the circuit court for the county of Ottawa. The balance of the claim is for legal services rendered by Mr. Smedley in this court, the two claims amounting to $340.42. It appears that the council of defendant city attempted, by resolution, to transfer certain of the city moneys from one fund to another. The mayor prepared a veto message, and the clerk refused to file the same, claiming that it came too late into his hands to be effective. Mandamus proceedings were commenced in the circuit court to compel the clerk to file it. The case was ruled in the circuit court against the mayor, and was removed by the mayor to this court. Mr. Smedley was employed by the mayor to represent him in that case, both in the circuit court and in this court. The order of the circuit court was reversed in this court. Baar v. Kirby, 118 Mich. 392, 76 N. W. 754. The mayor at the time of filing the petition for mandamus in that case in the circuit court also filed another petition for mandamus against the city council. That case was decided in favor of the mayor, and the case ended in that court. After the decision in this court of Baar v. Kirby, supra, Mr. Smedley presented his bills to the common council of the city for such legal services in the two cases,-one, Baar v. Kirby; and the other, Baar v. Common Council. These bills were referred to a finance committee, to which committee was added the city attorney. The committee recommended to the council that an order be drawn on the contingent fund in favor of the mayor to repay him for the tax cost in the Kirby Case, $37.80, and for all other legal expenses $50, making a total of $87.80, and that nothing be allowed Mr. Smedley for legal services. When this recommendation was read to the council, one of the aldermen moved that the mayor be allowed $349.50 with which to pay his attorney's fees in his mandamus case against the clerk. The vote was a tie in the council, and the mayor then voted in the affirmative, thus carrying the motion. Proceedings were then commenced against the mayor by four of the aldermen to compel him to determine that the resolution had not been carried, claiming that he had no legal right to vote on the question. That case is entitled, "Bishop v. Baar." Upon the coming in of the answer to show cause in that case in the circuit court, issues of fact were framed, and testimony was taken thereunder. A mandamus was issued from the circuit court in the case, setting aside the action of the mayor in voting on said bills. In the meantime the clerk of the council was instructed by the four aldermen and the city attorney Smedley v. City of Grand Haven not to draw a warrant for the amount of the bills so allowed at $349.50. Mr. Smedley thereupon commenced mandamus proceedings against the clerk to compel him to issue the warrant for the amount of the claims allowed. That case was determined in the circuit court against Mr. Smedley. He removed the same to this court by certiorari, and the case was here reversed, and the mandamus issued to compel the clerk to sign the warrant for the claim as allowed by the four aldermen and the mayor voting thereon. 79 N. W. 187. When the return was made by the circuit court to the order to show cause in Smedley v. Kirby, there was sent with the return all the files and proceedings in the case of Bishop v. Baar, though that case was never removed to this court. That case is referred to in Smedley v. Kirby. The clerk issued the warrant for the $349. 50, and the same has been paid. It appears that during all these proceedings the city attorney was antagonistic to the mayor. He appeared as counsel in every proceeding in the circuit court and in this court in opposition to the mayor. It was under his advice as a member of the finance committee that the council refused to allow the account in favor of the mayor. At the close of the testimony in the present case the court directed the verdict in favor of the defendant. We have set out very fully the facts in the case upon which the legal questions are raised. The testimony shows, as stated by the court below, that there was no concurrence by the common council with the action of the mayor in the employment of Mr. Smedley, except that the mayor spoke to them individually about such employment, and they said it was all right. It is also shown, as stated by the court, that the case of Bishop v. Baar was not appealed to this court; but it does appear that, when the circuit court made a return to the certiorari in Smedley v. Kirby, he returned all the proceedings had before him in Bishop v. Baar. The claim of the plaintiffs in the present case is for services in Bishop v. Baar in the circuit court and in this court. Plaintiffs, in their bill of particulars, treat the case of Bishop v. Baar as for argument in this court. That case was not in this court, and the court below was not in error in holding that the plaintiffs could not charge for that. As was said by the court below, Mr. Smedley used it only in support of his own case of Smedley v. Kirby. He has been paid in that case, and must rest satisfied with his taxable costs of both courts in the case. The question remains as to the claim for services in Bishop v. Baar in the circuit court. The charter of the city of Grand Haven provides, by chapter 8, § 20 (Laws 1895, p. 416) that: "The council shall audit and allow all accounts chargeable against the city, but no account or claim or contract shall be received for audit or allowance unless it shall be accompained with the certificate of an officer of the corporation, or an affidavit of a person rendering it to the effect that he verily believes that the services therein charged have been actually |