Goodrich v. City of Detroit

• Decision Date: 19 April 1864
• Citation: 12 Mich. 279
• Court: Michigan Supreme Court
• Parties: Judson C. Goodrich v. City of Detroit

12 Mich. 279

Judson C. Goodrich v. City of Detroit

Supreme Court of Michigan

April 19, 1864

Heard April 14, 1864 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case agreed upon by the parties, in the Wayne Circuit, as follows:

This is an action of assumpsit. The plaintiffs declare upon the common counts, and claim the sum of $ 5,000. The defendant pleads the general issue.

The facts of the matter in controversy are the following: In August, 1860, the plaintiffs entered into a contract with the defendant to do all the paving of the city for that year. The plaintiffs performed the contract in a satisfactory manner. The common council of said city assessed the taxes to pay for the paving thus done, in the usual manner.

William Cook was city collector of said city for the year 1860. He was appointed by the common council, and gave the required bond to the city, with sureties.

The assessment roll made as prescribed, with a warrant in the usual form, was put by the city into the hands of said Cook.

On this warrant and assessment, the said Cook collected the sum of $ 1,761, which he never paid over to the city treasurer, as provided by law.

The common council, in the fall of 1861, appointed a committee to examine into the accounts of the said Cook, then supposed to be a defaulter to the city, and this committee reported, October 1st, 1861, that the said Cook collected the sum mentioned, belonging to the paving fund, for the year 1860, with other sums belonging to other city funds, and recommended that the city sue said Cook and his bondsmen.

This recommendation was adopted by the common council, and suit commenced November 13th, 1861, by declaration. To this declaration a demurrer was put in on behalf of the defendant, January 2d, 1862. No further steps had been taken in the said suit, up to the time this present suit was commenced.

It is stipulated by and between the said parties, that upon the foregoing facts and following, the said Circuit Court shall determine the questions of difference between them in this cause, and shall render judgment therein, according as the rights of the said parties in law may appear, in the same manner as if the facts aforesaid were proven upon the trial of said issue.

It is further stipulated between the said parties, that the charter and ordinances of the said city of Detroit may be used by either party on the hearing of this cause, without proof, so far as the same shall be admissible, and that portions given below, of the contract for said paving, between plaintiffs and defendant, may be read as part of the evidence in this cause on the trial.

It is also admitted that the cause above mentioned, against Cook and his sureties, is on the docket, and duly noticed for hearing at the present term of this court. And that the plaintiffs have demanded the amount due them in the manner required by law and the terms of said contract.

Judgment affirmed, with costs.

Gray & O'Flynn, Attorneys for Defendant.

Walker & Kent, Attorneys for Plaintiffs.

The contract referred to in the foregoing is dated August 13th, 1860. The parties of the first part contract to do certain paving for the party of the second part. There are the following clauses:

"Payments for said work will be made from the proceeds of special assessments, made for that purpose upon each block paved, and not otherwise. And it is expressly understood and agreed, by and between the parties to this contract, that the parties of the first part shall not receive or demand payment for said work until money for the payment of the same shall have been collected by the city collector, or such other person as shall be appointed by the common council for that purpose, and actually paid into the city treasury upon the special assessment rolls aforesaid. The said party of the second part undertaking only to use reasonable care and dispatch in the preparation and collection of said special assessments, and the payment of the money proceeds thereof after collection and upon demand of the said parties of the first part."

On this case the Circuit Court rendered judgment for defendant.

Walker & Kent, for plaintiff:

1. The general character of the contract entered into between the city and plaintiffs is clearly set forth in Beard v. The City of Brooklyn, 31 Barb. 143. The liability of the city is special. It promised to pay for the paving, not generally, but only in a particular way. Its duty was to assess, collect, and pay over the taxes raised for the special purpose of paying for the paving done. It was bound to use reasonable care and diligence in doing this work. For the absence of this reasonable care in any of its agents, it is responsible. If responsible at all, if the contract be in any way binding, it must be responsible for its agents, since being a corporation it can act only through agents: Story on Agency, § 16.

2. Cook, the city collector, was the agent of the city in collecting the paving tax.

The city agreed, by the terms of the contract, to collect the money which was to pay for the paving. It could be collected only through an agent, and the intention must have been to collect it through the city collector, who must, therefore, be the agent of the city in the matter.

He can not be considered the agent of the contractors. They had no control over him. He was in no way responsible to them. There was not the slightest legal connection between them.

Neither can the city collector be regarded as an independent public officer, according to Lorillard v. Town of Monroe, 11 N. Y., 392. He is wholly the creature of the corporation.

In Massachusetts, illegal taxes that have been collected can be recovered of the town or city authorizing the collection, without showing that the money has been paid into the treasury of the corporation: 1 Allen 319; 6 Gray 131; 21 Pick. 64.

3. If Cook was the agent of the city, then, clearly, when he collected the money the city collected it. Payment to an authorized agent is, in all its legal consequences, the same as payment to the principal.

The money thus received was collected to pay the plaintiffs. The tax was assessed for this purpose. The city had no authority to receive the money, except for this.

The want of payment cannot be excused on the ground that the city has lost the money through the default of the collector. For all misfeasances of its agent, the city is liable: Story on Agency, § 452. They are legally its misfeasances.

Two clauses of the contract will be urged against the views that have been presented.

The first is, "payments for said work will be made from the proceeds of special assessments made for that purpose, upon each block paved, and not otherwise."

To this, we say, that it is for the proceeds of special assessments made as provided, that we sue. That the city has lost these proceeds through the carelessness of its agent; that is, through its own carelessness, can be no answer.

The second clause is, "and it is expressly understood and agreed by and between the parties to this contract, that the parties of the first part shall not receive or demand payment for said work, until money for the payment of the same shall have been collected by the city collector, or such other person as shall be appointed by the common council for that purpose, and actually paid into the city treasury upon the special assessment rolls aforesaid."

We think the true view of this is: It was inserted merely to fix, as the time when the contractors would become entitled to their pay, the point when the money would, in the ordinary course, be received into the city treasury.

The city would not agree to pay it as soon as collected, because the collector is not obliged to make a return as soon as he has collected any money. His warrant gives him a certain number of days before he is obliged to report and pay over the amount collected.

The city promised to pay the contractors as soon as the money was received into the treasury, where the proper officer could pay it, just as an administrator may promise to pay money out of an estate when collected.

We do not think it can be successfully maintained that the clause in question should be interpreted to make the contractors liable for the default of the city collector.

That such was not the intention is conclusively shown by the fact, that the city undertook "to use reasonable care and dispatch in the preparation and collection of said special assessment, and the payment of the money proceeds thereof after collection."

The "reasonable care and dispatch" the city promised must in part be that of the collector. He was to collect the money, and if any care was to be used in the collection, it must be his care.

4. If it were admitted that the city is not responsible for Cook's default, it was bound to use reasonable diligence in prosecuting his sureties. This it has not done: 31 Barb. 152; 1 Metc. (Ky.), 339.

W. Gray, for the city:

Defendant claims there is no liability under the contract, as the money...