Davey v. City of Big Rapids

• Decision Date: 27 February 1891
• Citation: 48 N.W. 178,85 Mich. 56
• Court: Michigan Supreme Court
• Parties: DAVEY v. CITY OF BIG RAPIDS.

48 N.W. 178

85 Mich. 56

DAVEY v. CITY OF BIG RAPIDS.

Supreme Court of Michigan

February 27, 1891

Assumpsit by Joseph Davey against the city of Big Rapids. The judge directed a verdict for defendant, and plaintiff appeals.

Fuller & Jennings, for appellant.

Dumon & Cogger, for appellee.

MORSE J.

The plaintiff brought suit in assumpsit upon a contract entered into with defendant to build the substructure of the "Upper Bridge" (so called) across the Muskegon river. The defendant pleaded the general issue; and gave notice that, after the signing of the contract, it was changed by mutual consent in this; that the plaintiff should build but one ice-breaker instead of two, and receive pay for building but one. That in pursuance of such agreement he built but one. Also that, before this suit was commenced, and on the 4th day of March, 1889, the plaintiff presented to the common council of said city of Big Rapids his bill of account for all the materials furnished and labor done under said contract. That said council acted upon and audited said bill and, after deducting $3,494.20, which had already been paid plaintiff upon said bill, found still remaining his due the sum of $394.17. An order was drawn for this last amount, and delivered to the plaintiff, who accepted the same in full of his claim against said city. It appears from the record that the plaintiff was not present when the council acted upon his bill. But he was informed of their action and called for his order, applying to the recorder, who was the officer whose duty it was to draw it. For some reason not disclosed by the record he did not at the time procure his order. At the next meeting of the council the plaintiff was present. A resolution was then passed instructing the recorder to draw an order for $394.17 in payment of his account. The plaintiff did not object to this proceeding, or protest in any way against the allowance of his account at this sum. On the following day he went to the recorder, obtained the order, indorsed it, and drew the money upon it. The circuit judge directed a verdict for the defendant, holding that in taking the order, as he did, the plaintiff must be held to have acquiesced in the action of the council and the settlement of his account by them made and that the case was ruled by Perry v. Cheboygan, 55 Mich. 250, 21 N.W. 333. The plaintiff insists that the acceptance of this order was not a bar to his bringing suit for and collecting his just claim against the city, and relies upon the following cases: People v. Auditors, 41 Mich. 4, 2 N.W. 180; Mortlock v. Williams, 76 Mich. 568, 43 N.W. 592; Wilkinson v. Long Rapids Tp., 74 Mich. 63, 41 N.W. 861; Turnbull v. Boggs, 78 Mich. 158, 43 N.W. 1050; Tiffany v. Glasgow, (Mich.) 46 N.W. 231. The last case plainly has no application to the case at bar. The first case seems to have been decided upon the point that the board of auditors of Wayne county, having fixed the salary of an officer by resolution, could not change such salary without further action spread upon the records of the board, and that the fact that the officer received less monthly than he was entitled to did not estop him from recovering his salary as fixed. In Mortlock v. Williams, supra, and Turnbull v. Boggs, supra, the acceptance of checks for an amount less than was claimed by the plaintiffs was held not to be an estoppel as a matter of law to a recovery of the full amount...