Just v. Wise Tp.

• Decision Date: 23 January 1880
• Citation: 4 N.W. 298,42 Mich. 573
• Court: Michigan Supreme Court
• Parties: JOSIAH E. JUST v. THE TOWNSHIP OF WISE.

4 N.W. 298

42 Mich. 573

JOSIAH E. JUST v. THE TOWNSHIP OF WISE.

Supreme Court of Michigan

January 23, 1880

In an action upon a township order given for labor, etc., on a highway, the order on its face was signed by the town clerk with the names of the commissioners, in their presence and at a board meeting. Subsequently and at the same meeting they signed their names to the certificate on the back of the order that the work had been performed and to their satisfaction. Held, a ratification of the signing by the clerk, the order a valid one, and mandamns and not assumpsit the proper remedy thereon.

Error to Isabella.

A.A. Ellis, for plaintiff in error.

Wheaton & Perry, for defendant in error.

MARSTON C.J.

Plaintiff commenced an action of assumpsit against the township declared upon the common counts, with a notice that upon the trial he would give in evidence one accepted highway order, a copy of which is set forth. The defence relied upon was that mandamus and not assumpsit was the proper remedy. The cause was tried by the court and a finding of facts made.

The court found that in 1872 Patrick Holden entered into a contract with the commissioners of highways and performed work and labor thereunder amounting to between $800 and $900, and that the same was accepted by the commissioners. That on December 25, 1872, a board acting as commissioners of highways found due on this contract $323.50 and while the board was in session an order was drawn by the township clerk in proper form for the amount allowed. A copy of this order is given in the finding, and it purports te have been signed by George M. Quick and Henry J. Taylor, as highway commissioners, and signed across the face "G. Dehart, Treasurer."

The court further finds that on the back of the order is the following;

"We hereby certify that the labor and material for which the within order is given has been performed and furnished to our satisfaction.

"GEORGE M. QUICK,

"HENRY J. TAYLOR,

"Highway commissioners."

--That the signatures of Quick and Taylor, as appearing on the face of the order, were made by John F. Skying, township clerk while all were present, acting as a board; that Quick authorized the clerk to sign his name to the order, and that the testimony did not show whether Taylor expressly authorized the clerk to sign his name or not, or that he knew that his name was signed to the face of the order, except as it may be inferred from the fact that it was done in his presence, and he signed the certificate on the back himself; that there was no positive evidence showing that Taylor was commissioner of highways, in fact, only that he acted as such; nor was there any evidence to show that the commissioners passed any resolution authorizing the clerks to sign their names to said order; that the certificate on the back of the order was signed by them while acting as such commissioners, and the words "highway commissioners" were printed thereon; that this order and the contract were duly assigned to plaintiff;...