Nickodemus v. City of East Saginaw

• Decision Date: 08 October 1872
• Citation: 25 Mich. 456
• Court: Michigan Supreme Court
• Parties: Jacob Nickodemus v. The City of East Saginaw

25 Mich. 456

Jacob Nickodemus v. The City of East Saginaw

Supreme Court of Michigan

October 8, 1872

Submitted on Briefs July 13, 1872. [Syllabus Material]

Case made from the Recorder's Court of East Saginaw.

This is an action of assumpsit, to recover from the city the sum of eight-five dollars and one cent, paid by the plaintiff to the city marshal, upon a special assessment for the improvement of Genesee street. It was admitted that the tax was illegal. The evidence showed that the marshal applied to the plaintiff, and demanded payment of the tax, and threatened to seize and sell his personal property, if he refused or declined to pay, and stated to him that the city would make him good, if the tax was not legal; and that the plaintiff paid the tax to avoid the seizure and sale of his personal property, and while under the conviction that the tax was illegal, and believing the statement of the marshal that the city would make the matter right; that the plaintiff petitioned the common council for the improvement of the street, but requested that one-half of the cost of it be paid by the city at large, and the other half by the owners of the property to be benefited; that the common council, in ordering the improvement, directed a larger proportion than one-half of the cost of the improvement, to be assessed upon the property benefited thereby; that the parties assessed including the plaintiff, were not satisfied with the manner in which the work upon the street was performed; that the warrant, as it appeared upon the assessment roll, had expired, and that several resolutions of the common council extending the time for the collection of the assessment, did not appear on the face of the roll; and that the ayes and nays upon the vote on these resolutions did not appear on the records of the common council. There was testimony showing that money collected on this special assessment was paid to the city treasurer, but none showing that the identical money paid by the plaintiff, was so paid.

The defendant claimed:

1. That to constitute a payment under duress, it must appear that the warrant attached to the assessment roll was good upon its face, and that in this case the warrant, as it appeared upon the assessment roll, had expired; and several resolutions of the common council, extending the time for the collection of the assessment, did not appear upon the face of the roll, and were not valid, for that, the ayes and nays do not appear upon the records of the common council.

2. That the plaintiff petitioned for the improvement, had knowledge of the progress of the work, had received the full benefit of the improvement, and was therefore equitably estopped from...