« ПретходнаНастави »
tice that they had overlooked some clos- | anything has been done from which the ets; and they sent men, and sponged these other party has received substantial off and heard no more complaint until they benefit, and which he has appropriated, called upon defendant to settle, who then a recovery may be had upon a quanclaimed that the defect in the walls still tum meruit based on that benefit. And existed, and that the cove work was not the basis of this recovery is not the origiaccording to specifications. The plaintiffs nal contract, but a new, implied agreement admit payment to them of $1,000, but at deducible from the delivery and acceptance what time it was made does not appear of some valuable service or thing. Allen v. from the record.
McKibbin, 5 Mich. 454. The plaintiffs apThe contract and specifications were in-peal to this principle, and claim that they troduced by the plaintiffs upon the trial; are entitled to recover, under the common and the most important question in the counts, although they have not obtained case is raised by the eighth request of de- the certificate of the architects; and they fendant, that the court instruct the jury rely upon Wildey v. School-District, 25 as follows: “Under the contract in evi- Mich. 422, in which this court held that the dence, it is provided that, before any pay- architect was not made the sole inspector ment can be demanded by plaintiffs, they or judge of the work as it progressed, but shall obtain a certificate from the architect. that a superintendent was expected to be, This they have not obtained, and your and was in fact, chosen by the district, verdict should therefore be for the defend- and that it was a reasonable inference ant." It is claimed by defendant's counsel that the superintendent was expected to that the failure of plaintiffs to complete supervise the work as it progressed, and the work to the satisfaction of the archi- to express his dissatisfaction with any portect, and procure his certificate, is a com- tion not in compliance with the specificaplete defense to this action. I think the tions. His powers were made, by the conpoint is well taken. There is no claim up-tract, as broad as those of the architect, on this record that the architects have and there was no consent in the contract been guilty of any fraud, or that there that his decision should be subject to rehad been any collusion between them and versal or review by his nominal superior; the defendant. There is no pretense that and for that reason it was held that whatthe plaintiffs have applied to or requested ever passed under his inspection as the the certificate required by the contract. work progressed, and was in good faith When parties capable of contracting have approved by him, expressly or by implicadeliberately entered into a written agree- tion, was not open to objection on the ment in which, by all just rules of construc- part of the defendant afterwards, and that tion, the certificate of the architects is as to so much of the work, at least, the made a condition precedent to a right of plaintiff had the same right to recover that action, such condition must be performed he would have had if the proper certificate or its requirements waived. The authori. had been furnished him. And it was also ties holding contracts like the one in ques- said that, “in a clear case, where the contion here valid are numerous. Leake, tractor had undertaken, in defiance of the Cont. (2d Ed.) 8 640; Benj. Sales, (3d Amer. superintendent, to force upon the district Ed.) § 575; Morgan v. Birnie, 9 Bing. 672; one thing, where they had bargained for Grafton v. Railroad Co., 8 Exch. 699; Clark another, -as, for instance, one kind of roof v. Watson, 18 C. B. (N. S.) 278; Goodyear where another was agreed for,-unless v. Mayor, 1 Har. & R. 67; Ferguson v. there was a subsequent assent to accept it, Galt, 23 Ú. C. C. P. 66; Smith v. Briggs, 3 express orimplied, we do not think the disDenio, 73; Railroad Co. v. McGrann, 33 Pa. trict would be held liable to pay for the St. 530; Reynolds v. Caldwell, 51 Pa. St. thing substituted at all. The district is 298; O'Reilly V. Kerns, 52 Pa. St. 214; not to be forced to take what it never Gray v. Railroad Co.,11 Hun, 70; Tyler v. wanted or bargained for, on any pretense Ames, 6 Lans. 280; Spring v. Clock Co., 24 that it will answer their purpose as well, Hun, 175; Smith v. Brady, 17 N. Y. 173; or that, even it will not, it is still of some Wyckoff v. Meyers, 44 N. Y. 143; Wangler v. value, and should be paid for accordingly.” Swift, 90 N. Y. 38; Tetz v. Butterfield, 54 I do not think the case of Wildey v. SchoolWis. 246, 11 N. W. Rep. 531; Kirtland v. District is an authority in support of plainMoore, (N. J.) 2 Atl. Rep. 269; Railway tiff's contention. The facts are entirely Co. v. Maher, 48 Ark. 522, 3 S. W. Rep. 639; different. Here there was no superintenStose v. Heissler, (111.) 11 N. E. Rep. 161; dent, aside from the architects, agreed upBoettler v. Tendick, (Tex.) 11 S. W. Rep. on, and no approval, express or implied, 497; Byrne v. Sisters of St. Elizabeth, 45 N. of the architects, of the work as it proJ. Law, 213; Elliott v. Assurance Co., L. gressed, or after it was completed. It is R. 2 Exch. 243. It has also been held that true that, as to the right of a party, in if the certificate is required to be in writ- general, to recover upon the common ing there can be no parol approval. Lam-counts, subject to a recoupment of damprell v. Billericay Union, 3 Exch. 283; Rus- ages, when he has not strictly complied sell v. Bandeira, 13 C. B. (N. S.) 149; Good- with his contract, the court expressed its year v. Mayor, 1 Har. & R. 67. Upon this , &
adherence to the views expressed in Allen point the authorities are not uniform, and v. McKibbin; but the right does not exist we are not called upon to decide it in this in all cases, as was explained in that case, case.
and more particularly in the later cases. It is the settled law in this state that Martus v. Houck, 39 Mich. 431, Fildew v. when a party fails to comply substantial- Besley, 42 Mich. 100, 3 N. W. Rep. 278. In ly with an agreement, unless it is appor- | Martus v. Houck we stated what was held tionable, he cannot sue upon the agree- in Wildey v. School District; and upon ment, or recover upon it at all. But when page 436 the same judge who wrote the
opinion in that case, referring to it, said: | cording to contract. As was said in Clark
the owner of such real estate, his taking These parties are bound by the contract possession after the other has left the they entered into. The plaintiffs agreed premises cannot be construed as an unto do the work, strictly in accordance equivocal acceptance, although he thereby with the plans and specifications, for a takes possession of, and appropriates to round sum. The defendant agreed to pay his use and benefit, the labor or materials plaintiffs from time to time, as the work of the contractor. He must do so, as a matprogressed, upon the plaintiffs' obtaining ter of necessity, in many cases, or suffer a certificate from the architects, deduct- the property to stand idle and unused, to Ing 10 per cent., until the job was complet- the great detriment of all parties, and es ed and accepted. The balance and such pecially so of the owner. The most that percentage was to be paid, on the archi- can be said, in such cases, is that the act tects' certificate, after the expiration of 30 of the party, and all the circumstances, days after acceptance and approval by may be taken into consideration in the de the architects and owner; and before each termination of the question whether there and every payment should be made a cer is an implied waiver of the condition pretificate was to be obtained from and cedent. Under the testimony appearing in signed by William Scott & Co., architects, this record, the fact of the defendant's takto the effect that the work has been done, ing possession was not sueh an acceptance and materials have been furnished, in as relieved the plaintiffs from the terms strict accordance with the agreement, and condition of the contract requiring drawings, and specifications, and that he them to obtain the architects' certificate considers the payment properly due. The before they were entitled to payment. fact is undisputed that the plaintiffs have As there must be a new trial, it may be not obtained the certificates required by well to notice one other matter of controthe contract. They have not applied to versy between the parties, and that is with the architects for such certificate. They reference to substituting the soap-stone hare not obtained the approval or ac- finish in the coves for pebbles and shells, ceptance by the architects of the work. as required by the specifications.
This They have not performed it according to substitution cannot be held to have been Its terms. On the contrary, they were no- made with the owner's consent previously tified by the architects that it was not obtained. Mr. Crittenden was not defendcompleted according to its terms, and cerant's agent for the purpose of making tain defects were pointed out. These de- changes in the plans and specifications, fects the plaintiffs claim to have been rem- and no authority was shown for him to do edied. This is disputed by defendant. so. The contract provided that such But, if plaintiffs did remedy the defects, changes should be made in writing signed they did not do so in the ways suggested by the owner and architect. The change by the architects; and they never have was not made in writing, and Mr. Crittenobtained the certificate of the architects den was neither owner nor architect. after they claim the defects were remedied. Whether this provision of the contract had The plaintiffs'assertion that they had rem- been waived, and the substitution ratiedied the defects did not give them a right fied, will be, upon a future trial, a question of action. They could not substitute their of fact, under all the circumstances, to be assertion for the architects certificate submitted to the jury. If any question agreed upon between the parties; norcould exists as to what the specification rethey change the condition under which the quires, the contract provides that the defendant agreed to pay the balance 30 architects shall determine as to their days after the architects' certificates of ap- meaning; and this power cannot be takproval, and of its being completed accord- en away from the architects agreed upon, Ing to the contract to an agreement to and left to the construction of other plaspay without the certificate, and on their terers or architects The court erred in own assertion that it was completed ac- l permitting this to be done upon the trial.
The judgment must be reversed, and a tended as an act to give effect to the bond, new trial is ordered. The other justices but to make and perpetuate a record of it. concurred.
“Delivery,” in the sense that it is neces
sary to the complete execution of a con(79 Mich. 620)
tract, implies a discretion both as to tendBROCKWAY V. PETTED et al.
er and acceptance. A deed may be prop(Supreme Court of Michigan April 11, 1890.) erly signed, witnessed, and acknowledged, INTOXICATING LIQUORS—BOND-FILING-ESTOP
but it is not executed until delivery. The PEL.
grantor may or may not deliver it as he 1. Where the sureties on a liquor bond have chooses. When the statute provides that signed and justified, and the bond has had the ap- a bond shall be deposited, filed with, or proval of the town board indorsed upon it, as re- delivered to, some public officer, to whom quired by How. St. Mich. $ 2278, but has not been
it gives no discretion in the matter, it filed with, or delivered to, the county treasurer,
makes his duty purely clerical. We must, they cannot deny their liability on the bond on the
therefore, look to the statute for some ground of the failure to file it, as that is a mere clerical act, and not essential to the validity of the
other time fixed by it when this bond can bond.
be regarded as executed, and given legal 2. Where the bond is afterwards filed, it re- effect. That time, in my judgment, is fixed lates back to its date, and covers the time prior to upon the approval of the bond. This its filing.
court has said that such a bond is valid 3. The sureties on such bond are estopped to
when accepted and approved by the comdeny the recital therein that the principal, at the time of its execution, was professing to carry on
mon council. People v. Laning, 41 N. W. the business of selling liquor.
Rep. 424. The defense is based upon the
theory that there can be no liability as Appeal from circuit court, Kent county ; against the sureties until the principal had WILLIAM E. GROVE, Judge.
complied with all the provisions of the law William F. McKnight and Turner & Car- prerequisite to his commencing the busiroll, for appellants. Myron H. Walker, for ness. If defendant Patterson had filed his appellee.
bond the day after its approval, but failed
to pay the tax, the defendants might with GRANT, J. Plaintiff sued defendant Rob- equal propriety claim this as a defense, ert Patterson for injury sustained by her and say, as they now say, that they had in consequence of his having sold liquor to a right to believe that their principal her husband. She obtained judgment, and would comply with the law before enterthereupon brought this suit upon the liquoring upon the business. If Patterson had bond signed by defendant Patterson as left this bond with the town board, to be principal and the other defendants as sure- filed by them with the treasurer, and the ties. She recovered judgment in the court board had failed to do so, would this debelow. The bond was dated May 5, 1886, fense then be urged? What difference can and was the bond required by How. St. it make whether Patterson gave the bond § 2278. The bond was accepted and ap- to some one else to file with the treasurer, proved by the town board May 12, 1886, or took it himself for that purpose? He and their approval indorsed thereon May was then carrying on the business. His 15th. It was filed with the county treas. | bond said so. He intended to file it, and urer May 27th. The act of Patterson for did file it afterwards. The case of Hyatt which plaintiff recovered her judgment oc- v. Sewing Machine Co., 41 Mich. 225, i N. curred between the date of the approval of W. Rep. 1037, decides, simply, that a surethe bond and its filing with the county ty is not presumed to have meant to be treasurer. Defendants insist that no lia- come answerable for acts committed before bility could be incurred under this bond he signed the obligation. The language of until it had been filed or delivered to the the bond is not given, but the court say county treasurer. This is the principal "the terms are all future.” The principle
" question in the case.
is recognized in Bruce v. State, 11 Gill & J. 1. This is a statutory bond, and must be 382. That was a suit upon a sheriff's bond. interpreted according to the intent and The constitution of Maryland provided meaning of the legislative enactment. It that no sheriff should be qualified to act runs to the people of the state of Michigan. until he had given the bond, and the stat, Under the statute, the sureties must sign ute provided before whom, and when, such and justify. It must be approved by the bond should be taken. The court says: town board, and their approval indorsed. “The bond is made. It is the obligatory It must then be filed with, or delivered to, act of the signers when, being signed, it the county treasurer. No discretion in re- is presented to the court or judge, etc., and gard to the receipt and filing is lodged in thesureties are adjudged sufficient the county treasurer. When presented, From that moment it is the operative act with the approval of the town board in- and deed of the parties, and not before. dorsed thereon, he is bound to receive it The case of McMicken v. Webb, 6 How. and file it. The filing is clearly for the 293, involved the liability of the signers to benefit of the public, and those who may a promissory note. So is also the case of be entitled to remedies under it. The Burson s. Huntington, 21 Mich. 430, and word “delivered,' used in this statute, Bullock v. Taylor, 39 Mich. 137. They have was clearly not intended to be used in the no application to the case at bar. In Com. legal sense of a delivery necessary to the v. Kendig, 2 Pa. St. 448, the suit was upon execution of a contract. The fact that, in the bond of a justice of the peace.
It was the statute, the word “filed " is used inter- signed upon Sunday and delivered on Monchangeably with “delivered,” appears to
, appears to day to the prothonotary. The court says: me conclusive on this point. The duty of Granting that the bond was signed and the treasurer is merely clerical; not in- delivered on Sunday, yet I am by no means
sa tisfied that it is vold as against those expressly provided. But it by no means who are injured by the official misconduct follows that this rule extends to statuof the justice. They are innocent parties, tory bonds, given for the protection of and ought not to be affected by the folly third parties, covering a period of time fixed or turpitude of the prothonotary and by the statute. The statute requires that obligors. Such a construction of the act every liquor dealer shall yearly execute such would enable the obligors to take advan- | bond. It continues in force for one year tage of their own wrong as against persons from the 1st of May. It was the evident who cannot by any possibility protect intent of these parties to comply with this themselves." Does not the same reason- provision. They signed the bond on the Ing apply very forcibly to this case? The 12th of May, and deliberately dated it back above are all the authorities cited by the to the 5th of May. It recited that Patterdefendants in support of their contention. son then professed to carry on the busiOne of them directly sustains the rule con- ness. They are presumed to know the tended for by plaintiff, and none of the oth- law, and to have contracted with reference ers are in conflict with it. The case of to it. They deliberately made their bond State v. Toomer was a suit upon a bond to speak from the 5th. As a matter of of a master in equity. The statute pre- fact he was carrying on the business. The scribed several prerequisites to entitle the only fair conclusion to be drawn is that marter to enter upon his duties, one being they intended the bond to relate back to that he should not enter upon ther until and cover the period from its date. In he had recorded in the clerk's office a cer- State v. Finn, 23 Mo. App. 290, the sheriff tificate from commissioners that he had was elected in November. On November lodged in the treasury his bond, and that 21st he gave the bond required by the statif he failed to comply with these requisites ute. November 29th the court, for some the office was declared vacant. This was reason which does not appear, ordered a held to be no defense to an action against new bond to be given in lieu of the first. the sureties. 7 Rich. Law, 216. His off- Suit was brought for money received by the cial acts as to third persons were held val- sheriff between the 21st and the 29th. The id, and for offcial defaults his sureties suretles were held responsible for the sherwere liable. A bond is clearly complete, iff's conduct during his entire official term. and becomes operative, when all the dis- In Ætna Ins. Co. v. American Surety Co., cretionary acts necessary to give it valid- 34 Fed. Rep. 291, the bond sued upon was ity have been performed. When these have dated June 15th, and was to run for the term been performed, and the principal com- of 12 months ending June 15th, the following mences the business mentioned in the bond year. It was not delivered or accepted for the proper performance of which the until July 29th. The court held that the sureties have become obligated, the bond llability of the surety accrned by relation Is then in full force, and the liability of the as of its date, and that the sureties were Bureties attaches. In this case the bond liable for all defalcations prior to July was executed, the principal was carrying 29th. In that case the parties in the bond on the business, and it le fair to presume fixed the term. In this case the statute that his sureties knew it. I find no princi- fixes it. ple, moral or legal, upon which they can 3. It is the established rule that sureties be relieved. Il defendant's contention be are estopped to deny the facts recited in correct, then, 11 Patterson had paid the their obligations, whether true or false. tax, and the treasurer had issued to him Brandt, Sur. 89 29, 30. Where the bond rethe receipt without the filing of the bond, cited that A. was appointed paymaster, it the fureties would be relieved from liabil was held that he and his sureties were ity. To all sucb claims it is a sufficient estopped to deny that fact. V. S. v.
U. answer that it is against the unlawful acts Bradley, 10 Pet. 365. Where the bond reof Patterson that these bondemen express- cited that B. was appointed a wharfinger, ly obligated themselves. The object of the it was held that his sureties were estopped statute was to secure the payment of dam- to deny it. People v. Huson, 20 Pac. Rep. agen " that may be adjudged to any person 369. It is also held immaterial whether for injuries inflicted upon them, either in there be any such office as is set up in the person or property or means of support, bond. Rogers v. U. S., 32 Fed. Rep. 890. by reason of bis (the liquor dealer's) sell- Where a replevin bond recited that it was ing, furnishing, giving, or delivering any signed by S., the principal, who was in such liquors. The right to recover such fact dead at the time, the sureties were damages is not made dependent upon the held estopped to deny that S. had signed fact that the liquor dealer is legally en- it. Collins v. Mitchell, 5 Fla. 364. Neither gaged in the business. As well might it be Patterson nor his sureties can take adclaimed that the bondsmen have the right rantage of his neglect to file the bond. to presume that liquor dealers will not rell His failure to do so was his own wrongful on the Fourth of July, or any other day act. Stevens v Treasurers, 2 McCord, 107. upon which the sale is prohibited, and In that case the sheriff could not, by law, therefore that they are not liable when in- enter on the duties of his office until he jury results.
had filed a certificate from commissioners 2. Upon the fling of the bond, it related that he had executed and filed a bond back to its date, and covered the time with the treasurer. The court says: prior to its filing. The rule is well settled "Neither he nor the su reties can take adthat contracts of suretyship affecting or- vantage of his wrongful neglect. * dinary business transnctions take effect | The approval by the commissioners, the
, only from the date of their execution, certificate,
are no more than the which includes delivery, and that they wili mere modes of giving, examining, and pernot be given retroactive effect unless so petuating the bond. These are not of the essence, and constitute no part of the ,
McAlvay & Grant, for appellant. Uhl & obligation, of the contract.” In the case Crane, for appellees. at bar the defendant's sureties had done all that the law required, and all that they CHAMPLIN, C. J. The petitioner presents could do, to complete the bond. They had a claim against the receivers of an insolv. signed and justified to it. It had been ap- ent estate, praying that he may be paid proved. They left it with their principal, the full balance remaining due of the purPatterson, to file. It recited that he was chase price of certain pine and ash timber then professing to carry on the business. which he claims to have sold by contract, They are, therefore, estopped, both by retaining title in himself until the purchase law and reason, to make this defense. It price should be paid, the avails of which is notorious that liquor dealers, by the im- timber he claims is in the hands of the replied, if not the express, assent of the offi- ceiver. cers charged by the law with the duty of The important question is whether he enforcing it, are often permitted to carry has parted with his title to the timber. A on the business until they can raise the history of the transactions, stated as money to pay the tax. It would, in my briefly as possible, is necessary to a proper judgment, be a direct violation of the spir- | understanding of the question raised. On it and intent of this law to relieve them January 2, 1886, Charles L. Ortman was and their sureties from liability upon their the owner of large tracts of land in Michibonds under such circumstances. To hold gan, and among them the lands upon them liable gives the protection which the which the timber in question was standlaw intended to innocent parties, wbo are ing. On that day, being indebted to the not, and cannot well be, charged with any bank of which Mr. Edward H. Butler was duty in regard to the execution or filing of president, and desiring to secure the bank, the bond. To relieve them would result in he conveyed the tracts of land by waropening the door to intentional as well as ranty deed to Mr. Butler, who held them careless evasions of the law.
in trust and as security for the bank. On 4. The court correctly rejected the offer December 7, 1886, Ortman entered into a of defendants to show that after they written contract with Eugene Chappell and heard of the injury to plaintiff's husband D. J. Smith, in which he agreed to sell to they demanded the surrender of the bonds, them all the pine and ash timber then and that Patterson promised to surrender growing, standing, and lying upon certain them. Judgment affirmed, with costs. described lands in township 20 N., range The other justices concurred.
11 W., for $14,000. Four thousand six hun
dred and sixty-seven dollars was to be paid (80 Mich. 67)
down, and the balance, $9,333, in accordIn re ORTMAN.
ance with a promissory note, with interest (Supreme Court of Michigan. April 11, 1890.)
at 7 per cent., 18 months from date. It
was mutually agreed that the title to the CONTRACT-BILL OF SALE-CONSTRUCTION. timber should remain in Ortman, and
A land-owner made an executory contract should not pass to Chappell and Smith anfor the sale of standing timber, licensing the pur- til the note, and interest thereon, should chasers to cut the timber, but retaining the title
be fully paid and satisfied, and that upon thereto until the purchase money should be fully paid. Subsequently, the contract having been as
such payment the title of the timber should signed, the owner agreed to execute a bill of sale pass to Chappell and Smith. It was stipwithout other security than the notes of the as- ulated that Chappell and Smith should signee. Held that, on the execution of an absolute have three years from the 1st of January, bill of sale, acknowledging the receipt of the pur- 1887, to cut and remove the timber, and chase money, the title to the timber vested in the
that after January 1, 1890, all the pine and assignee, though the warranty clause contained
ash timber then left on the land should rean exception subjecting the bill of sale to the "provisions and conditions of the executory contract.
vert to Ortman, and they should have no
right to cut and remove timber after that Appeal from circuit court, Manistee coun- date. They also agreed to pay the taxes ty, in chancery; J. B. JUDKINS, Judge. after the year 1886. Such were the main
The Manistee Salt & Lumber Company, features of the contract, so far as affects after the death of its president, Michael the question in dispute. It will be seen Engelmann, being insolvent, made an as- that there was an implied permission to signment, naming E. Golden Filer as as- enter upon the lands and cut and remove signee. Mr. Filer signified that he would pine and ash timber at once, but the title not accept the trust, and a bill was filed to the timber so cut remained in Ortman by the Wisconsin Marine & Fire Insurance until the note should be fully paid ; that Co. Bank against him and the Manistee when payment was fully made the title Salt & Lumber Company for the appoint- was to pass to the purchasers. The rights ment of a receiver to administer the estate. of the parties were not very definitely fixed Otto Kitzinger was appointed such re- or guarded. There was no restriction ceiver, and James Gamble, on petition of against cutting more than a certain quansome of the creditors, was afterwards ap- tity, without paying in proportion as such pointed co-receiver. Subsequently, Charles cutting would lessen the security; and the L. Ortman filed his petition, claiming title title of Ortman would be of little security to timber that had been cut by the insolv- after the lumber had lost its identity by ent company on his land, and praying that being thrown upon the market, and minthe fund arising from the sale of the timber gled with other timber of like grades. In be set apart for the payment of his claim. August, 1887, R. A. Seymour negotiated On the hearing an order was made denying with the purchasers under the contract, his prayer, and declaring him one of the and by a memorandum of agreement dated general creditors. Ortman appeals.
August 19, 1887, Ortman made an agree