Hannah v. Fife

• Decision Date: 29 April 1873
• Citation: 27 Mich. 172
• Court: Michigan Supreme Court
• Parties: Perry Hannah and another v. William H. Fife and another

27 Mich. 172

Perry Hannah and another v. William H. Fife and another

Supreme Court of Michigan

April 29, 1873

Heard April 16, 1873

Error to Grand Traverse Circuit.

Judgment of the circuit court reversed, with costs.

Fitch R. Williams and G. V. N. Lothrop, for plaintiffs in error.

E. S Pratt and Ramsdell & Benedict, for defendants in error.

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

OPINION

Christiancy, Ch. J

This was an action of assumpsit brought by Fife and Haviland in the circuit court for the county of Grand Traverse against the plaintiffs in error, as the sureties of one Oscar L. Noble, in a contract between said Noble and Fife and Haviland, by which Noble agreed to enter into and perform a contract with the State for the construction of a swamp-land state road, for the building of which said Fife and Haviland had been the lowest bidders, and to give them as a bonus for being allowed to take their place in the contract, eight sections of the swamp lands to be received from the State for the performance of the work.

A copy of the contract is given below.

The evidence in the case tends to show the following state of facts:

Dewitt C. Leach, in April, 1868, being the local commissioner of the road in question, whose business it was, on behalf of the State, to let the contract for the building of the road to the lowest responsible bidder, subject to the approval of the general swamp-land state road commissioners, and having given due notice of the time and place of letting the contract, proceeded, in accordance with said notice, on the 9th day of April, 1868, to open the bids which had been received, two bids only having been put in for the whole work advertised to be let, one of which was by said Oscar L. Noble and the other by Fife and Haviland. And upon opening the bids in the presence of all these parties, it was found that Noble's bid was for a road-bed to be graded only sixteen feet wide, which was not in accordance with the plan adopted by the State authorities or with the notice, which required such road-bed to be twenty feet wide; but he proposed to complete the work by the first day of December then next, while the bid of Fife and Haviland was for a road-bed twenty-feet wide, according to the plan and notice, but proposed the completion of the work only by the 7th day of April, 1869. Each of the bids was for two sections of land to the mile, which was the maximum quantity allowed by law for the work.--Laws of 1863, pp. 322-323; Laws of 1867, Vol. 2, p. 854. The commissioner, therefore, on reading the bids aloud in the hearing of the parties, said to them that it was manifest from the reading of the bids, to whom the job must go, meaning to Fife and Haviland, and all the parties so understanding him. And the commissioner was about to award the contract to them, and would have done so at once; but Noble, in that stage of the transaction, requested the commissioner not to take any further steps in the matter until he and Fife and Haviland should have an opportunity to consult together; and thereupon Noble and Fife and Haviland left the room, and returning in a few minutes, all joined in a request that matters should remain as they were until they could have more time to consult. The matter then remained open until the 11th day of April; and during this time there was considerable consultation between the parties, and they separately conferred with the commissioner. The result was that Noble and Fife and Haviland, having entered into the agreement upon which this suit is brought, on the 11th of April the contract with the State for building the road was, by the commissioner, with the assent and approval of Fife and Haviland, made directly with Noble, instead of Fife and Haviland, to whom it would otherwise have been awarded. But the commissioner made this contract with Noble substantially upon the terms of the bid of Fife and Haviland, though upon somewhat more favorable terms to the State, as it provided for the completion of the work by December 1st, 1868, instead of April 7th, 1869, which that bid proposed. The contract with Noble being executed by the local commissioner was delivered to Noble with the bids, to be taken to Lansing, but the local commissioner made no report to the state commissioner, of the facts in the case or the substitution of Noble in place of Fife and Haviland, nor does it appear that he was ever notified of it. The contract of Noble was approved by the state commissioner; and the better to appreciate the nature of the contract of Noble with Fife and Haviland, upon which this suit is brought, it is proper to say that the substance of Noble's contract with the State was for the building of this road (59 miles and 25 chains) in the particular manner therein specified, to be completed by the first day of December, 1868; upon the completion and acceptance of which, and a certificate by the proper authorities, Noble was to receive in full compensation for the work, a grant by patent from the State, of one thousand two hundred and eighty acres (two sections) of swamp-lands per mile; one-half to be taken from the counties in which the road ran, in proportion to its length in each county, and the other half from any unsold State swamp-lands in the lower peninsula applicable to the construction of this road at the time of selection. And this contract was expressly made subject to the approval of the swamp-land state road commissioner.

Such was the substance of Noble's contract with the State, and such the circumstances under which that contract was made, as well as the contract of Noble with the plaintiffs below, in which the defendants below were Noble's sureties, This contract is in the following words: "An agreement made this 11th day of April, A. D. 1868, by and between W. H. Fife and Joseph B. Haviland, of Grand Traverse county, State of Michigan, parties of the first part, and Oscar L. Noble, of Antrim county, State aforesaid, of the second part, and Perry Hanna and Henry H. Noble as sureties for the performance of this contract on the part of Oscar L. Noble, party of the second part, to wit:

"W H. Fife and Joseph B. Haviland this day agree to allow D. C. Leach, local commissioner on the north division of the Midland City and Traverse Bay State swamp-land road, to make out and execute a contract with Oscar L. Noble, for the building of the north division of the Midland City and Traverse Bay State road, which was awarded to said Fife and Haviland at the declaring of said bid by the said local commissioner, on the 9th day of April, A. D. 1868. In consideration of the said Fife and Haviland agreeing to the above, the said Oscar L. Noble agrees on his part to execute a contract according to the printed forms of the State road commissioner, with the local commissioner, for the building of the north division of the Midland City and Grand Traverse Bay State swampland road, to be completed by the 1st day of December next, for the same pay in State swamp-lands from the State of Michigan that is contained in the bid of Fife and Haviland.

"And the said Oscar L. Noble further agrees, if the contract which he makes with the local commissioner is approved by the State swamp-land road commissioner, that he will give to the said Fife and Haviland four sections of State swamp-land, to be selected by the said Fife and Haviland, in any of the counties through which the road may run, and four sections of land to be selected from any of the unsold State swamp-lands in the State of Michigan; and that he will receive from the said Fife and Haviland any description of unselected or unsold swamp-lands, belonging to the State of Michigan, and hold the same on his contract for them until he can obtain a title to the said lands in their names by the completion of the work on his contract, which shall all be done on or before the first day of December next, except that he will mature to the said Fife and Haviland a title to one section which they may select out of the first matured scrip he may have a right to, from the State of Michigan. It is also understood and agreed, that if the said parties should conflict in...