Detroit Advertiser & Tribune Co. v. City of Detroit

• Decision Date: 07 April 1880
• Citation: 43 Mich. 116,5 N.W. 72
• Parties: DETROIT ADVERTISER & TRIBUNE v. CITY OF DETROIT.
• Court: Michigan Supreme Court

5 N.W. 72

43 Mich. 116

DETROIT ADVERTISER & TRIBUNE v. CITY OF DETROIT.

Supreme Court of Michigan

April 7, 1880

Where a claim against a municipal corporation is properly presented to and allowed by the proper officers and paid, it must be conclusively presumed that they had full knowledge of all the facts pertaining thereto, which a proper investigation would then have disclosed, and they cannot, upon any such matter thereafter rescind their action and recover back the money paid. Notice to the controller of facts in regard to a claim against a city is not notice to the city.

Error to superior court to Detroit.

C.I. Walker, for plaintiff in error.

F.A Baker, City Counselor, for defendant in error.

MARSTON C.J.

The city of Detroit brought an action of assumpsit to recover back money paid under the following facts:

The Advertiser and Tribune Company in 1875 entered into a written agreement with the city to do its printing at a certain discount below the statutory rates. A clause was inserted in the contract that "no constructive charges whatever are to be made for printing, publishing or furnishing material."

Under this contract the Tribune Company published the list of tax sales, known among printers as "figure work," and evidence was given that according to a custom among printers double measure was allowed for such work in the payment of employes and in charges to customers. During the time of such publication the manager of the company, on discovering such fact and ascertaining the custom, went to the city controller, informed him fully of all the facts as stated--that the company would make a claim against the city for double measurement--and the controller, after taking time to counsel with others, informed the manager that the claim as made, would be allowed.

An account was afterwards made out against the city and presented to the controller, in which the city was charged according to the contract rates, but upon a double measurement of the actual work done upon the tax sale lists and was then allowed and paid. The controller had full notice of all the facts. There was no evidence tending to show that the common council or any member thereof had any notice of the facts or the manner in which the account had been made out.

Counsel for defendant requested the court to charge the jury:

"1. The only ground upon which recovery can properly be sought in this case is that the money was paid by the plaintiff to the defendant under a mistake of fact.

"2. If paid under a mistake merely as to the construction of the contract there can be no recovery.

"3. If the claim for printing was properly presented to the controller, who has the general supervision of the financial concerns of the city, and he was fully informed as to the mode of measuring for the work done, and the mode of charging therefor, and he reported the claims to the common council with his approval, and they audited and allowed the same, and the money was thereupon paid, there can be no recovery for the money thus paid, as notice to the controller was notice to the city."

These requests were refused, and, under the instructions given, a verdict was rendered in favor of the city.

Proof of the custom referred to would not entitle the defendant to double measurement under the contract. The price agreed upon was to be 86 per cent. below the rates fixed by the statutes of Michigan for the publication of legal notices, including tax sales. The statute does not allow double measurement, and to allow such in this case would be to give the defendant much more than the price agreed upon, and the contract also provided against the allowance of constructive charges.

Under the charter of the city of Detroit the controller had no power...