Ely v. City of Grand Rapids

• Citation: 84 Mich. 336,47 N.W. 447
• Court: Supreme Court of Michigan
• Decision Date: 24 December 1890
• Parties: ELY et al. v. CITY OF GRAND RAPIDS.

47 N.W. 447

84 Mich. 336

ELY et al. v. CITY OF GRAND RAPIDS.

Supreme Court of Michigan

December 24, 1890

Appeal from superior court of Grand Rapids, in chancery; EDWIN A BURLINGAME, Judge.

Eggleston & McBride, for appellants.

J W. Ransom, (W. W. Taylor, City Atty., of counsel,) for appellee.

GRANT J.

The charter of the city of Grand Rapids contains the following provisions: "(1) When the common council of said city decide that the construction of any public work in said city is a necessary public improvement, the board of public works shall determine as to the particular kind and quality of materials to be used therefor, and estimate the probable cost and expense of the work, and of the materials to be used, in detail; and cause to be prepared, as far as necessary, plans and specifications for such work, and report their estimate to the common council as a basis for assessing, or otherwise raising, according to law, the funds necessary to enable the board to go forward and complete the work. (2) The work shall be done under the direction and supervision of the board of public works, and upon contracts and under plans and specifications to be prepared by the city surveyor, and approved by such board. (3) The board of public works shall advertise for proposals to execute the work, and for materials, according to plans and specifications adopted by the board, and may contract with the lowest bidder." On June 22, 1887, the common council adopted a resolution requesting the board of public works to establish the grade line of Curtis street, and furnish the council with an estimate of the cost of grading, graveling, and paving the gutters of the same, the same being a necessary public improvement. All the subsequent proceedings, including the petition by the property owners, the estimate, the letting of the contract, and the first assessment to cover the expense are admitted to have been regular. The estimate submitted to the council by the board of public works was $2,920. Upon this report, an assessment was made by the council, which was satisfactory to the parties interested. Of the bids made the lowest was $2,792, and for that sum the contract was let. In the estimate upon which these bids were made was the item "Stone paving, 159 square yards." There was no item for "paving gutters" either in the estimate, specifications, or contract, and after the work had progressed some what it was discovered that, while the improvement provided for in the original resolution contemplated and required the gutters to be paved, no provision was made therefor in the contract and specifications annexed thereto. Upon making this discovery, the board instructed the engineer to see the contractor, and obtain from him a proposition to pave the gutters. He offered to do it for the same price per yard for which he had contracted to do the 159 square yards of paving. The engineer reported this to the board, with his estimate of the number of yards of paving, making it 2,135 yards instead of 159 yards as in the original contract. This would leave 2,076 square yards of gutter paving, which, at 40 cents per yard, amounts to $830.40. This was approved by the board, and certified to the council. The council thereupon rescinded its former...