Long v. Mayor, Recorder and Aldermen of Battle Creek

• Decision Date: 15 October 1878
• Citation: 39 Mich. 323
• Court: Michigan Supreme Court
• Parties: James Long and Matthew Simpson, Executors v. Mayor, Recorder and Aldermen of Battle Creek

39 Mich. 323

James Long and Matthew Simpson, Executors v. Mayor, Recorder and Aldermen of Battle Creek

Supreme Court of Michigan

October 15, 1878

Submitted June 20, 1878

Error to Calhoun.

Judgment on appeal fro commissioners in probate. Appellants bring error.

Judgment affirmed with costs.

John C FitzGerald for plaintiffs in error. Oral evidence tending to show an alteration in a contract is inadmissible, Powers' Appeal, 29 Mich. 509; Moser v. White, id., 60; Seibrecht v. New Orleans, 12 La. Ann., 496; the proceedings of a common council are presumed to be shown by their records which oral evidence cannot supplement, Stevenson v. Bay City, 26 Mich. 46; Hall v. People, 21 Mich. 461; a common council cannot extend a street without first declaring the extension a necessary public improvement, Sess. Laws 1859, p. 63, §§ 17, 18; Hoyt v. East Saginaw, 19 Mich. 39; McComb v. Bell, 2 Minn. 295; the contracts of a common council are invalid unless for municipal and not private purposes, Thomas v. Port Huron, 27 Mich. 323; People v. Salem, 20 Mich. 470; Sharpless v. Mayor, 21 Penn. St., 168; Brodhead v. Milwaukee, 19 Wis. 624; Colton v. Hanchett, 13 Ill. 615; Clark v. Des Moines, 19 Ia. 199; Hodges v. Buffalo, 2 Den. 112; Donovan v. Mayor, 33 N. Y., 291; Livingston County v. Weider, 64 Ill. 427; Randolph County v. Jones, 1 Ill. 237; a promise of a reward for doing one's duty is illegal and void, Addison on Contracts, § 253; Mills v. Mills, 40 N. Y., 545; Fuller v. Dame, 18 Pick. 481; Marshall v. B. & O. R. R., 16 How. 314; Clippinger v. Hepbaugh, 5 W. & S., 315; Dudley v. Cilley, 5 N. H., 558; a municipal corporation cannot expend public money unless for public necessity; but not for private advantage, Hanson v. Vernon, 27 Ia. 47; State v. Wapello County, 13 Ia. 405; People v. McCreery, 34 Cal. 432; Hilbish v. Catherman, 64 Penn. St., 154; Warren v. Henly, 31 Ia. 31; S. & V. R. R. v. Stockton, 41 Cal. 149; Bay City v. State Treasurer, 23 Mich. 499.

Arthur Brown for defendants in error. A contract with an owner of lands specially benefited by it is binding on the owner of the lands, Crockett v. Boston, 5 Cush. 182; Springfield v. Harris, 107 Mass. 532; Townsend v. Hoyle, 20 Conn. 1; 1 Dill. Mun. Corp., § 382, n. 2.

OPINION

Marston, J.

This case came up in the circuit court upon an appeal from the allowance of the claim by the commissioners appointed to adjust claims against the estate of Thomas G. Duncan, deceased. A judgment was recovered in the circuit court and the case comes here upon writ of error.

The principal facts out of which this claim grew are, in brief, that Duncan was the owner of a tract of land in the city of Battle Creek which he desired to improve; that in April, 1870, he appeared before the common council of said city, and made a verbal proposition in reference to the building of a bridge across the Kalamazoo river, at the foot of Kendall street, and the extension of Kendall street across his land; that action was thereafter taken by the common council in reference thereto, his proposition was accepted and the bridge constructed, and it was claimed on the part of the city that it was entitled to recover out of his estate, in accordance with the proposition made by him and accepted by the city, one half the contract price of building the bridge, less the amount paid on Mr. Duncan's behalf during his lifetime.

It will not be necessary to discuss the several errors assigned separately and each at length; they raise certain legal propositions which we will proceed to consider.

First. That there was only one way by which the common council could act in the premises, viz.: by resolution, and that whatever action they did take is conclusively presumed to be evidenced by their record, and that parol evidence is inadmissible to alter, add to, or supplement such record; that the court erred therefore in permitting oral testimony to be given of the proposition made by Mr. Duncan to the council, and in permitting Joseph G. Hoyt to give evidence of certain conversations which he afterwards had with Mr. Duncan in reference to the building of this bridge, and which, it is claimed, varied or changed the original proposition and contract, if any such contract were ever made.

The legal proposition asserted by counsel is correct as a general one; the difficulty arises in its application to the facts in this case.

The proposition submitted by Mr. Duncan to the common council was not in writing. It is true that the records of the council contain what purports to be the substance of that proposition. This was necessary in order to point to or make clear the subject matter in case the council should take any action in reference thereto. The proposition as made might be spread upon the record by the clerk, or it might be incorporated in a preamble or resolution adopted by the council, and thus become a part of their record. In either event it could not be conclusively presumed to contain the proposition made in all its details, and would not preclude Mr. Duncan or his representatives from showing what the proposition as actually made, contained, even although by so doing the record might be contradicted, added to, or varied. While the city would be concluded by the record evidence of the action taken by the common council, neither the city nor third parties could be by the recitals in the record of oral propositions made by third persons. Either party would be at liberty to prove by oral testimony the proposition actually submitted and acted upon. Of course the result of such a showing in some cases might establish the fact that nothing had in truth been agreed upon; that the proposition as submitted and the one acted upon and accepted were so dissimilar that the minds of the parties could not be said to have met upon anything. Of course an oral proposition might be submitted, and as it appeared upon the record be changed or varied, and accepted or acted upon in its changed condition and yet bind the parties by ratification by the acts and declaration of the person making the proposition, after having been in any way made aware of the changes.

It was competent therefore to show, independently of the records of the council, the proposition made by Mr. Duncan in reference to the building of this bridge, and also the conversation which members of the council afterwards had with him in reference thereto, whether instructed to confer with him upon the subject or otherwise. Detroit, Lansing & Lake Michigan R. R. Co. v. Starnes, 38 Mich. 698; Taymouth v. Koehler, 35 Mich. 22.

Second. It is claimed that no contract whatever was shown to have been made; that the proposition made by Duncan was so indefinite and uncertain that it could not have or be given the force of a contract; that the proposition made was for a "good bridge," but did not state its size or class, whether foot, toll or suspension; whether it should be built of iron, wood or stone, nor the particular place where, or when it should be built or the expense or cost thereof, and that the report of the committee, and the action of the council thereon must necessarily be equally indefinite and uncertain, as the council could only accept or reject the proposition as made.

This last statement, as we have already said, is not strictly correct. The council could accept the proposition with such changes and modifications as was deemed best, and should the party afterwards be informed of the changes or conditions, and assent thereto, he would be bound thereby the same as though such changes or conditions had been contained in his original proposition. If an offer or proposition is made by a person to a corporation in relation to a matter within the scope of its authority, and is accepted in a modified form, we know of no legal principle which would prevent both parties from carrying out the agreement in its new or accepted form, if they thought proper so to do.

In regard to the indefinite and uncertain nature of the proposition and acceptance, were this an action brought to enforce specific performance of the agreement or to recover damages from non-performance of the contract in not building the same, the objections urged would have some force. Such is not this case. Here the bridge has been built, no question is made as to the time, place or manner of...