Chase v. Clinton Cnty.

Decision Date19 January 1928
Docket NumberNo. 69.,69.
PartiesCHASE v. CLINTON COUNTY et al.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Clinton County; Hart, Judge.

Action by Adelbert E. Chase against the County of Clinton and Board of County Road Commissioners. Judgment for defendants, and plaintiff brings error. Affirmed.

Argued before the Entire Bench. Frank L. Dodge and Charles W. McGill, both of Lansing, for appellant.

Oliver Spaulding, of St. Johns, for appellees.

BIRD, J.

Plaintiff brought this action to recover damages alleged to have been suffered through negligence of the board of county road commissioners of Clinton County, causing costly delay in the execution by him of a contract for construction of a state reward road in that county. His declaration is based on tort, in a plea of trespass on the case, alleging actionable negligence on the part of the board of county road commissioners in not sooner taking proper steps to relieve the contract from an injunction against it issued by the circuit court of Clinton county in chancery restraining the board from all further proceedings under the contract, after signing it.

Construction under said contract was authorized by, and undertaken pursuant to, provisions of Act No. 59, Public Acts of 1915, known as the ‘Covert Act.’ No question is raised as to the regularity of the proceedings leading up to and awarding the contract to plaintiff under provisions of that statute. The amount of his bid was $27,000. It was accepted and contract awarded to him as the lowest bidder on March 30, 1917.

Before the parties had time to formally close the contract in writing, an injunction restraining the board of county road commissioners from entering into it or taking any further proceedings in relation thereto was issued and served under a bill of complaint filed at the instance of certain citizens and taxpayers of the county alleging invalidity of the proceedings, chiefly on the ground that the Covert Act was unconstitutional. Plaintiff was not made a party to said suit, but was at once advised of it.

A motion was promptly made by defendants for dismissal of said injunction, and the same was heard on the evening of March 31, 1917. After hearing counsel for the respective sides, the court made an order modifying the injunction by allowing the board of county road commissioners to sign the proposed contract for construction of the road, but staying it from all further proceedings under said contract, until further order of the court. At this hearing plaintiff and his brother, a practicing attorney of 20 years' standing, who became his bondsman under the contract, were present and fully informed of the nature of the so modified restraining order. It was then indorsed by plaintiff over his signature as follows:

Adelbert E. Chase, the contractor in said contract, agrees to abide the above order.’

The parties thereupon executed the contract, dated March 31, 1917, and a bond in the sum of $3,000 for its proper execution, signed by plaintiff and his brother as bondsman, was accepted and filed.

Defendants took prompt steps to bring the injunction suit to issue and hearing. They appeared generally, answered issuably, and the board of county road commissioners filed a request, on April 20, 1917, that the case be placed on the calendar for hearing at the next ensuing term. Following docket entries in the case only show a substitution of attorneys, on January 26, 1918, and a stipulation dismissing the bill of complaint filed March 11, 1918.

Plaintiff thereafter took steps to construct the road, and began work early in April, 1918, about the 11th, as he testifies, without complaint or protest so far as appears. In November, 1919, when the contract was somewhere near half performed, he applied to the board of county road commissioners for an increase of compensation under his contract, on the ground that entry of this country into the World War subsequent to its execution had resulted in disturbed economic conditions, scarcity of labor, increase of wages, and cost of material. After consulting with the Attorney General's office, the commission advised him it could not comply with his request. Plaintiff thereafter completed the road according to the terms of his contract, and was paid by the county the full amount of the contract price.

Based upon such situation, the charge of actionable tort in plaintiff's declaration is covered by the following allegations:

‘It was the duty of the defendant, said county of Clinton, by its board of supervisors and the board of county road commissioners, and all other parties acting as agents of said county, to move the court to a reasonably speedy trial and decree in said injunction matter, and do all other acts and things on their part respectively to be performed, to put this plaintiff in possession of the premises of said proposed road, thereby reasonably enabling him to go speedily forward with said construction to finish the same within the time limited by said contract, to wit, the 1st day of December, 1918; and whereas the said board of county road commissioners and board of supervisors of said county did not reasonably or seasonably move this court, nor did they take any steps or action on their part, or either of them, to move the court, until the 11th day of March, 1918. * * *

Plaintiff was unnecessarily delayed in the construction of said road, being compelled, without fault or negligence on plaintiff's part, to construct the same during the abnormally high-price period of labor, material, and all matters entering into the construction of said state reward road in the years 1918, 1919, and 1920, at a greatly increased and advanced cost of labor, materials, and loss of time.’

Defendants pleaded the general issue, and the board of road commissioners gave notice of special defenses. The case was heard before the court without a jury. The trial court, being of opinion no actionable tort negligence was shown, rendered a judgment for defendants.

Plaintiff's testimony is largely devoted to showing that, after the fall of 1917, financial conditions were so disturbed by the war that costs of everything connected with his contract greatly increased, with unavoidable delays in securing material and labor, and instead of making, as he could have done had the delay and war not intervened, a profit on his contract of over $7,000, he completed it later at an actual cost to him of some $7,000 more than the contract price. It was contended for defendants that the contract could have been performed after the time plaintiff commenced it for $2,000 less than the contract price. The evidence is convincing that actual cost of constructing the highway was greatly enhanced by advent of war conditions; but, having found no actionable tort shown, the trial court did not pass upon that question of fact, and it is not before us.

The agreement...

To continue reading

Request your trial
29 cases
  • Loweke v. Ann Arbor Ceiling & Partition Co.
    • United States
    • Michigan Supreme Court
    • June 6, 2011
    ...contract. Rinaldo's Constr., 454 Mich. at 83–84, 559 N.W.2d 647; Ferrett, 438 Mich. at 245 n. 11, 475 N.W.2d 243; Chase v. Clinton Co., 241 Mich. 478, 486, 217 N.W. 565 (1928). As this Court has stated, however, the fundamental principle distinguishing a cause of action in tort from one in ......
  • Bailey v. Schaaf
    • United States
    • Court of Appeal of Michigan — District of US
    • February 20, 2014
    ...on the nonperformance of a contractual duty.” Id. at 466, 683 N.W.2d 587, citing Hart, 347 Mich. 559, 79 N.W.2d 895, Chase v. Clinton Co., 241 Mich. 478, 217 N.W. 565 (1928), and Churchill v. Howe, 186 Mich. 107, 152 N.W. 989 (1915). But the Court felt that this distinction was largely “sem......
  • General Motors Corp. v. Paramount Metal Products
    • United States
    • U.S. District Court — Eastern District of Michigan
    • March 28, 2000
    ...(internal quotation omitted). "Economic unprofitableness is not the equivalent of impossibility of performance." Chase v. Clinton County, 241 Mich. 478, 484, 217 N.W. 565 (1928). Construing the pleadings and evidence in a light most favorable to Paramount, it would be impossible as a matter......
  • Richard v. Illinois Bell Telephone Co., s. 76-777 and 77-931
    • United States
    • United States Appellate Court of Illinois
    • November 3, 1978
    ...72, 76, 24 P.2d 211, 213; Executive House Bldg., Inc. v. Demarest (La.Ct.App.1971), 248 So.2d 405, 411; Chase v. Clinton County (1928), 241 Mich. 478, 484, 217 N.W. 565, 567; Gaydos v. Packanack Woods Development Co. (1960), 64 N.J.Super. 395, 400, 166 A.2d 181, 184.) The meaning of the ter......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT