Kenyon v. Charlevoix Imp. Co.

• Court: Michigan Supreme Court
• Writing for the Court: [135 Mich. 106] GRANT, J. (after stating the facts). HOOKER, C.J. [135 Mich. 111] CARPENTER, J.
• Citation: Kenyon v. Charlevoix Imp. Co., 97 N.W. 407, 135 Mich. 103 (Mich. 1903)
• Decision Date: 01 December 1903
• Parties: KENYON v. CHARLEVOIX IMP. CO.

97 N.W. 407

135 Mich. 103

KENYON v. CHARLEVOIX IMP. CO.

Supreme Court of Michigan

December 1, 1903

Error to Circuit Court, Charlevoix County; Frederick W. Mayne Judge.

Action by Frank A. Kenyon against Charlevoix Improvement Company. From a judgment for plaintiff, defendant brings error. Reversed.

Plaintiff is the register of deeds of Charlevoix county, and under a contract with the board of supervisors kept up a set of abstract books owned by the county. He received fees for abstracts as his compensation. Charles M. Heald was president of the defendant company, and resided in Detroit. A contract was entered into between plaintiff and defendant, through Mr Heald, evidenced alone by the following correspondence:

'Detroit Mich., August 24, 1901.

'Register of Deeds, Charlevoix, Mich.--Dear Sir: Herewith I enclose the abstract of title covering what was formerly known as the Dickson land, now Lindsay Park addition to Charlevoix. I wish you would please bring this down to date, and then I would like to ask that you to get a bid from one of your printers to print say four hundred copies of the abstract, such abstract to bear your certificate that the printed copy is correct. Will you kindly give this matter your early attention, and very much oblige,

'Yours truly,

'Charles M. Heald, President.'

'Charlevoix Improvement Company, detroit, Mich.: As you requested, I have secured a price for printing 400 copies of the abstract of Lindsay Park, which is fifteen dollars. I think it would be a good plan to have the certificate of the county treasurer in regard to the taxes. You didn't mention this, but most parties require tax history with abstract.

'Awaiting your reply, I am, very respectfully yours,

'Frank A. Kenyon, Abstractor.'

'Mr. Frank A. Kenyon, Abstractor, Charlevoix, Mich.--Dear Sir: In reply to your favor of the 27th inst, please bring the abstract down to date, showing therein the sale of the Chicago & West Michigan Railway to the Pere Marquette Railroad, and have 400 copies of the abstract printed as per your letter. I would also be glad if you would have the certificate of the county treasurer in regard to the taxes prepared, and I will thank you very must if you will give these matters early attention.

Yours truly,

'Charles M. Heald, President.'

After completion of the work contracted for, plaintiff rendered a bill therefor of $500. The defendant, considering the bill exorbitant, declined to pay it, and returned the papers. Plaintiff declined to receive the papers, and instituted this suit to recover for his services. His bill of particulars reads as follows:

To services in revising and correcting record title to the property known as Lindsay Park Addition to the Village of Charlevoix, and furnishing 400 abstracts thereof $1,000

To furnishing 400 abstracts of title of Lindsay Park Addition to the Village of Charlevoix, at $2.50 $1,000

To furnishing 400 tax histories of Lindsay Park Addition to the Village of Charlevoix, made by Henry C. Cooper, and by him assigned to plaintiff, at 50c $200

Plaintiff recovered verdict and judgment for $500.

Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

J. M. Harris and A. B. Nicholas, for appellee.

GRANT, J. (after stating the facts).

The errors assigned relate exclusively to the rulings of the court upon the measure of recovery. The usual price charged by plaintiff and fixed by the board of supervisors for making the abstract was $19.75. The printer's bill was $30. This increase in the printer's bill over the price stated in plaintiff's letter was due to a change after the printing was begun. He claims to have paid the county treasurer $60. If these are all legitimate charges, plaintiff recovered $390.25 for his services in reading proof, assembling, signing, and sealing 400 printed copies. Plaintiff testified that he could do this work in two days. One Adams, register of deeds of Antrim county, a witness for plaintiff, testified that he could sign and seal the 400 copies in two or three hours; that all the proof reading could be done in about an hour, and that the printer does all the rest of the work. Three witnesses, including plaintiff, all abstractors of more or less experience in the counties where they resided and did business, testified in his behalf on the value of these services, and the method of computing them. Upon cross-examination the court refused to permit the defendant's counsel to show the value of the time spent by the plaintiff in reading proof, assembling, signing, and sealing the copies. Plaintiff rendered a bill for $500, filed a bill of particulars claiming $1,200, testified that he charged defendant $2.50 each for his work on the 400, and 50 cents each for the tax certificates, and that the original abstract was worth $19.75 making a total of $1,219.75. One of his witnesses fixed the value at $1,975, another at $770; while the expert witnesses for the defendant, including Mr. Charles M. Burton, of Detroit, whose abstract business is the most extensive in the state, testified that they usually made no charges for such copies.

When one seeks to recover hundreds of dollars for a few hours' work he must be able to show either an express contract or a custom known to the contracting parties, or so open and notorious that the parties must in law be held to have contracted with reference to it. Lamb v Henderson, 63 Mich. 302, 29 N.W. 732; Scott v. Maier, 56 Mich. 554, 23 N.W. 218, 56 Am. Rep. 402; Schurr v. Savingy, 85 Mich. 144, 48 N.W. 547; Eaton v. Gladwell, 108 Mich. 678, 66 N.W. 598. If such a custom had existed locally in Charlevoix county, that would not bind a party residing elsewhere, who had no notice or knowledge of it. Pennell v. Delta Transportation Co., 94 Mich. 247, 53 N.W. 1049; Eaton v. Gladwell, 108 Mich. 678, 66 N.W. 598; Hutchings v. Ladd, 16 Mich. 493. See, also, Milligan v. Sligh Furn Co., 111 Mich. 629, 70 N.W. 133; Reynolds v. Continental Ins. Co., 36 Mich. 130, 142. The defendant in this case had no notice or knowledge of any such custom. No custom was shown. Each witness for the plaintiff arrived at the damages upon a different basis, as is evidenced by the fact that no two agreed upon the measure of damages. One witness, when asked what 400 printed copies, like those here in issue, would be worth, testified: '400 abstracts would come to $7,700. If I were making 400, I shouldn't discount it less than one-tenth; making $770 as the least I would do the work for.' He immediately testified that he meant a discount of 90 per cent. When asked on cross-examination what was the basis for such a charge, he replied, 'Well, sir, if I were in the abstract business, I should protect my business. I would estimate or calculate that in 20 years I should abstract at least half of those lots. * * * To a certain extent I base my charges of $770 upon the earnings I would lose during the next twenty years.' Such testimony is, of course, too indefinite and uncertain to furnish any basis for damages. If there was no custom controlling the price of such copies, the rule of damages would be their actual value. The time spent in the work and the value of such time are, in such a case, important elements. Plaintiff arbitrarily charged $2.50 a piece for the copies. He could as well have charged any other sum. He might as well have charged $19.75 for each as an original abstract, or $7,700 for the lot. But it is not claimed that defendant contracted for 400 originals. He asked plaintiff to bring the abstract down to date, and to get a bid for printing 400 copies, with his certificate attached that the printed copy is correct....