Affeld v. City of Detroit

• Decision Date: 11 May 1897
• Court: Michigan Supreme Court
• Parties: AFFELD v. CITY OF DETROIT.

71 N.W. 151

112 Mich. 560

AFFELD v. CITY OF DETROIT.

Supreme Court of Michigan

May 11, 1897

Error to circuit court, Wayne county; Fred H. Aldrich, Judge.

Action by John Affeld against the city of Detroit. There was judgment on a verdict directed for plaintiff, and defendant brings error. Reversed.

Arthur Webster (Charles Flowers, of counsel), for appellant.

James H. Pound, for appellee.

HOOKER J.

The plaintiff constructed a sewer under a contract between himself and the city of Detroit. The charter of the city in force when the contract was made (Local Laws 1883, p. 629, � 8) provided: "No contract shall be let or entered into for the construction of any public work to be done *** until a tax or assessment has been levied to defray the cost or expense of the same, and no work *** shall be paid for or contracted to be paid for, except out of the proceeds of the tax or assessment thus levied." And the contract included the following provision: "And it is expressly agreed by and between the parties hereto that the said city of Detroit, the party of the second part, shall in no event be liable to the party of the first part, for any part or portion of the cost of the labor and materials, and that the said party of the first part shall never ask for or receive from the city any part of the portion thereof, but shall depend entirely upon such special assessments for their compensation." An assessment was made upon adjoining premises, and, after the collection of a portion of the sum assessed, an injunction bill was filed, and an injunction issued, to restrain further steps to collect the remainder and apparently the city authorities have no confidence in their authority to collect the same; and, although no decree has been taken, the restraining order is in force, and no attempt has been made to bring the litigation to a close, or to make another assessment. The ground of the suit to enjoin the collection appears to be that the city authorities constructed a new sewer under a resolution to reconstruct an old one. Whether or not the assessment was void has not been decided, and we cannot, upon this record, determine that question, or whether, if so, a new assessment might be lawfully made. As already seen, the charter expressly forbids that work shall be paid for except out of the proceeds of the assessment. A special agreement to do otherwise would be null and void, yet we are asked to say that...