Gale v. Village of Kalamazoo

• Citation: 23 Mich. 344
• Court: Supreme Court of Michigan
• Decision Date: 03 October 1871
• Parties: George H. Gale v. The Village of Kalamazoo

23 Mich. 344

George H. Gale v. The Village of Kalamazoo

Supreme Court of Michigan

October 3, 1871

Heard July 6, 1871 [Syllabus Material] [Syllabus Material]

Error to Kalamazoo circuit.

This was an action brought by George H. Gale against the village of Kalamazoo, for a breach of contract in refusing to exercise the legislative powers of the village to carry out an agreement, of which the following is a copy, viz:

"George H. Gale, of the village and county of Kalamazoo and state of Michigan, hereby stipulates, agrees and obligates himself his heirs and legal representatives, to the president and trustees of the village of Kalamazoo, in said county and state, to erect, build and finish on village lots number four and five, on the corner of Burdick and Eleanor streets, said village, according to the plan herewith attached and marked A,' a commodious market-house, to be denominated the Kalamazoo Public Market,' and to be used for the purpose of vending meat, fish, poultry, game, fruit, vegetables, eggs and butter; said market-house to be so arranged with convenient stalls and fixtures that the same may be used at all seasons of the year, and with convenient approaches to the same for wagons, carts, drays and other vehicles; said market-house to be completed, and ready for occupancy and use by the first day of January, A. D. 1868, and to cost, including the ground to be occupied for the same, a sum not less than eight thousand dollars.

"Immediately after said market-house is completed and ready for its occupants, the said George H. Gale hereby stipulates and agrees to place the same in the care and under the control of the president and trustees of the village of Kalamazoo and their successors in office, for the term of ten years, who shall control and rent the stalls in said market-house from year to year, or such other time as may be agreed upon, and for such sums of money and to such persons as may be agreed upon by said president and trustees and said George H. Gale or his legal representatives, and on receipt of the rent it shall be paid to said George H. Gale, his heirs or assigns, quarter-annually, and as the same may be received from the occupants of the stalls in said market-house.

"And it is further agreed between said parties, that the said George H. Gale, his heirs or legal representatives, shall keep said market-house and its approaches in good repair at his own cost, charge and expense, during the continuance of this contract; and it is further agreed between said parties that after the expiration of said term of ten years, or before, by consent of the parties hereto, this contract may be continued in force for the same or any other definite period of time; and when this contract shall be ended and of no further binding force between said parties, the said president and trustees, and their successors in office hereby reserve to themselves the right at all times in the future thereafter to go upon said premises and inspect the same, and control the same so far as it may concern the cleanliness of said market-house as affecting the health of said village.

"In consideration of the foregoing stipulation and agreement on the part of the said George H. Gale, the said president and trustees of the village of Kalamazoo hereby bind and obligate themselves and their successors in office, to have said market-house attended to, and supervised, by a competent manager or clerk, to be by them appointed, whose business, among other duties, it shall be to require the observance of all ordinances or by-laws adopted by said president and trustees, for the purpose of properly regulating said market-house and the vending of meats, fish, poultry, game, fruit, vegetables, eggs and butter, within the corporate limits of said village; and all the expenses of said manager or clerk shall be paid by the said Gale.

"The said president and trustees do further agree that during the continuance of this contract there shall be no other public market-house in said village, provided said market-house shall prove large enough to accommodate the public for the purposes aforesaid; and the said president and trustees do further agree that the sale of all the articles above specified within the corporate limits of said village shall be confined to said market-house, or on the ground specified in section eleven of the by-law relating to public markets, during market hours.

"The said president and trustees, for themselves and their successors in office, do further agree that at the expiration of this contract they will surrender possession of said market-house to said George H. Gale, his heirs, assigns or legal representatives.

"And it is further agreed that this contract shall not be binding upon said president and trustees of said village, until said market-house is fully completed and accepted by said president and trustees, and when so accepted it is also agreed that none of its provisions are to be construed so as to create any liability to the said George H. Gale, his heirs or assigns, on the part of said president and trustees of the village of Kalamazoo or their successors in office, for any damage that may at any time occur to said public market-house by fire or other elements."

This contract was executed by the plaintiff personally, and on behalf of the village by the president and trustees of the village. The averments of the declaration are sufficiently stated in the opinion. The defendant demurred to the declaration, alleging the following causes of demurrer, viz: 1. That it appears in and by said declaration that the contract therein set out was not executed by said defendant, but by certain individuals, whose names are thereto attached. 2. That said defendant had no legal power to execute such a contract as is therein set forth. 3. That it does not appear, in and by said declaration, that said contract therein set forth was ever authorized, or entered into, or executed by the president and trustees of said village of Kalamazoo, or that said president and trustees ever accepted said market-house, or assumed the control thereof. 4. That it does not appear, in, and by, said declaration, that said by-laws therein set forth, or any of them, were of any valid or binding force. 5. That said by-laws, even if valid, would not give the plaintiff any grounds for a private or civil action against the defendant.

This demurrer was sustained, and judgment was rendered for the defendant. The plaintiff brings the cause to this court by writ of error.

Judgment of the court affirmed.

Edwards & Sherwood, H. F. Severens and D. Darwin Hughes, for plaintiff in error.

J. W. Breese, C.I. Walker, G. V. N. Lothrop and Dwight May, for defendant in error.

Cooley, J. Campbell, Ch. J., and Graves, J., concurred. Christiancy, J., did not sit in this case.

OPINION

Cooley, J.:

The objection made by the defendant, that the contract sued upon appears to be the contract of the president and trustees of the village of Kalamazoo, as individuals, instead of the contract of the village itself, does not appear to us well founded. The averment in the declaration, is that "the said plaintiff and the said defendant entered into their certain contract or agreement in writing, which said contract or agreement, sealed by the said plaintiff, and by the said defendant, by its agents and servants, the president and trustees of the village of Kalamazoo, executing the same and having full power and authority so to do, and to bind the defendant thereby, is in the words and figures," which are given in full. This averment is sufficient to embrace whatever was essential to confer upon the president and trustees the proper authority to make the contract on behalf of the village; and it must be taken to be the contract of the corporation, unless the instrument as thus set out shows upon its face that it is the contract of the officers and not of the corporation. We think it...