Knapp v. Swaney

• Citation: 56 Mich. 345,23 N.W. 162
• Court: Supreme Court of Michigan
• Decision Date: 15 April 1885
• Parties: KNAPP and others v. SWANEY and others.

23 N.W. 162

56 Mich. 345

KNAPP and others v. SWANEY and others.

Supreme Court of Michigan

April 15, 1885

Mandamus.

Bean Underwood & Lane, for relator.

L.H. Salsbury and Millard & Weaver, for respondent.

COOLEY C.J.

The facts of this case, so far as material to the decision, are the following:

The county of Lenawee by popular vote, in the year 1882, decided to raise $50,000 for the construction of a court-house. In providing for the construction the board of supervisors appointed a "committee on court-house," to whom it was proposed to refer all matters relating to the building. Of this committee the respondent Swaney was chairman, and the respondent Hunter clerk, and they have continued to be such officers to the present time. It was among the powers conferred upon them that they were to draw orders upon the county treasury in payment of contractors. The committee, in pursuance of their authority, proceeded to obtain plans and specifications for the building, and to advertise for proposals for its construction. Bids were received, and among these was one from the copartnership of Allen & Van Tassel and this was deemed most favorable and was accepted. A contract for construction was therefore duly entered into with them, and the relators became sureties for due performance on their part.

One of the provisions of the contract was that the contractors were not to sublet the work or any part thereof without the written consent of the committee. Another was that payments were to be made on estimates by the architect, but it was provided that "in each case a certificate shall be obtained by the contractor from the register of deeds where liens are recorded, signed and sealed by said register; that he has carefully examined the records in his office, and finds no liens or claims recorded or filed against said works and buildings, or on account of the said contractor. Neither shall there be any legal or lawful claims against the contractor in any manner, from any source whatever, for work or materials furnished on said work and buildings."

The contractors proceeded for a time in construction, and then failed, and the relators, for their own protection, took an assignment of the contract and went on with the work. No objection seems to have been made to this, and their substitution in the place of the contractors was practically assented to. The work proceeded until January 7, 1885, when the relators obtained estimates from the architect for something over $7,000, which they presented to the respondents, and requested an order on the county treasurer for the amount. They also, at the same time, presented a certificate, under the hand and seal of the register of deeds for the county, stating that no other liens or claims appeared in his office except the following: A claim of lien by Townsend & Burton for material, filed October 20, 1884; a claim of lien by True, Brinkhorst & Co. for materials and labor, filed October 16, 1884; a claim of lien by E.C. Sword for materials, filed January 6, 1885; and a claim of lien by Herbert Baker for labor and materials, filed October 30, 1884. Copies of these several claims appear in the record. The relators denied that there were or could be any liens in such a case, and insisted on their order, but the respondents refused it. A mandamus was thereupon applied for, and the parties have formed an issue upon the application, and brought facts before us.

The position of the relators, that there can be no liens in such a case, we consider unquestionable. Public property cannot be the subject of such a lien unless the statute shall expressly so provide; it is by implication excepted from lien statutes as much as from general tax laws, and for the same reasons. Foster v. Fowler, 60 Pa.St. 27; Frank v. Freeholders, 39 N.J. 347; Poillon v. Mayor, etc., 47 N.Y. 666; Board Education v. Neidenberger, 78 Ill. 58; Bouton v. McDonough Co. 84 Ill. 376; Loring v. Small, 50 Iowa, 271. For tax cases see People v. Doe, 36 Cal. 220; People v. Salomon, 51 Ill. 37; Louisville v. Com. 1 Duv. 295; Gibson v. Howe, 37 Iowa, 168; Directors of Poor v. School Directors, 42 Pa.St. 21; State v. Gaffney, 34 N.J.Law, 133. We may therefore put aside all questions of lien.

But the contract does not provide for liens merely, but also that there shall be no "legal or lawful claims against the contractor, in any manner, from any source whatever, for work or materials furnished on said work and buildings," when payment of estimates is called for. Whether the certificate of the register is to negative such claims, is not very clear as matter of construction, nor, perhaps, very important. It is not shown or urged that no such claims exist, and we must assume that they do, or at least that they may.

The question, then, is, are the contractors, under the contract or the relators, as their assignees, entitled to payment while there are outstanding claims for materials or labor? The claims in this case appear to be claims against Allen & Van Tassel, not against the relators. In our opinion that is an immaterial fact. The relators step into the shoes of the contractors, and can claim nothing under the contract which Allen & Van Tassel themselves could not have claimed. But the relators insist that the provision in the contract which makes payment depend upon the non-existence of claims against the contractors was one the committee or the board of supervisors, whom they represented, had no authority to make, and it was therefore inoperative. The argument on this point,...