Schwaderer v. Huron-Clinton Metropolitan Authority

• Decision Date: 08 January 1951
• Docket Number: No. 82,HURON-CLINTON,82
• Citation: 45 N.W.2d 279,329 Mich. 258
• Parties: SCHWADERER et al. v.METROPOLITAN AUTHORITY.
• Court: Michigan Supreme Court

Page 279

45 N.W.2d 279

329 Mich. 258

SCHWADERER et al. v. HURON-CLINTON METROPOLITAN AUTHORITY.

No. 82.

Supreme Court of Michigan.

Jan. 8, 1951.

Miller, Canfield, Paddock & Stone, Detroit, Maurice C. Ransford, Caro, of counsel, for defendant and appellant.

Frank J. Ortman, Detroit, for plaintiff and appellee.

Before the Entire Bench.

CARR, Justice.

The defendant in this case is a public corporation organized under the provisions of P.A. 1939, No. 147, C.L. 1948, § 119.51 et seq., Stat. Ann. § 5.2148(1) et seq. Said act authorized the counties of Wayne, Washtenaw, Livingston, Oakland and Macomb, to join in a metropolitan district for the purpose of establishing, owning and developing public parks with connecting drives, and highways. The electors in said counties accepted the provisions of the act in accordance with the procedure outlined therein. The governing authority is a board of seven commissioners, one chosen by the board of supervisors in each of the counties named, and the remaining two appointed by the governor of the State.

In 1946 the defendant's board of commissioners had under consideration the establishing of the Kensington Metropolitan Park along the Huron river in the townships of Milford and Lyon, Oakland county, and the township of Brighton, Livingston county, referred to in the record as the Kent Lake Park Project. To accomplish the desired result in accordance with the plans it was necessary to dam the river and to enlarge two natural lakes in the area into an artificial lake covering approximately 1,200 acres. It was necessary also, for reasons of safety and appearance, to cut and remove trees, stumps, shrubs and brush, which otherwise would have extended above the surface of the artificial lake, or that would have created an undesirable condition beneath the surface. To determine the elevation of the property in the area a topographical survey had previously been made. In planning the project it was determined that the surface of the lake might properly be established at an elevation of 883 feet above sea level. Stakes were placed to indicate the location of contour lines. The testimony in the record indicates a difference of opinion as to whether such stakes were accurately placed. The construction of a dam in the river was begun for the purpose of flooding the area in the spring of 1947.

The work of removing trees, stumps and brush, from the area was begun by defendant, and some progress made. Doubts arising as to whether the work would be completed by defendant's employees by the time the dam was finished, it was determined to have the clearing done under contract. Preliminary thereto a map was prepared by defendant's engineers. An aerial survey made in 1937, which apparently consisted of a group of photographs of the area put together in accordance with a definite scale, was used. Said photographs are referred to in the record as a 'mosaic.' It is also claimed that the knowledge and experience of the defendant's engineers and field men, personally familiar with the land in question, entered into the preparation of the map. The contour lines were superimposed on the aerial survey and the parcels of land necessary to be cleared were outlined. After the lines on the map had been established a plamineter was used to measure the areas of the parcels to be cleared, and the number of acres in each such parcel, determined by this method, was noted. The testimony indicates that a planimeter is an engineering device used in determining the areas of irregular parcels of land, and that to obtain approximately accurate results with it requires skill and care. The map as finally completed indicated 161.01 acres of heavy clearing, 118.33 acres of light clearing, and 19.35 acres of brush clearing, or a total acreage to be cleared of 298.69. The nature of the clearing work in any area was not, it appears, determined in accordance with any set formula, but was wholly a matter or judgment.

The plaintiffs in the case were, during the year 1946, engaged as co-partners in contracting work. Inasmuch as Eugene B. Schwaderer was the active partner in charge of the business and represented himself and his co-partner in all negotiations and dealings with the defendant, we refer to him herein, for brevity and convenience, as the plaintiff. His testimony in the case discloses that he had been engaged in the contracting business, including work of the nature involved in the instant case, for approximately 25 years.

A member of the board of commissioners of the defendant contacted plaintiff and sought to interest him in the clearing of the land for the proposed lake. After looking over the site plaintiff came to the conclusion that he was not interested. Subsequently, however, a meeting was arranged at the project, at which plaintiff, defendant's commissioner above areferred to, its consulting engineer, and its engineer director, were present. The parties looked over the property and a conversation occurred with reference to the price for which plaintiff would be willing to accept a contract to do the necessary clearing. In the course of such conversation plaintiff indicated that an average of $200 per acre would be satisfactory. He was shown the map above referred to, upon which the parcels to be cleared, and the acreage in each, were indicated. Plaintiff claims it was understood by the parties that defendant's representatives would attempt to negotiate a contract between plaintiff and the board of commissioners for the doing of the clearing on the basis of $200 per acre. Subsequently he was advised that because of the nature of the work it would not be possible to let a contract without advertising for competitive bids. He further testified on the trial that he was asked to submit a bid on the basis of $200 an acre and that he agreed to do so.

It was the claim of the plaintiff, as alleged in his bill of complaint and stated in his testimony, that he relied on the accuracy of the map, and the figures thereon, shown to him by defendant's representatives, and that he prepared his bid on the basis of $220 per acre for heavy clearing, $180 per acre for light clearing, and $130 per acre for brush clearing, computing the total amount in accordance with the representation made to him as to the acreage in each class. Accordingly he submitted a bid in the sum of $59,237.10, or an average of approximately $200 per acre for the total represented acreage. His did being low it was accepted, and a written contract was entered into for the doing of the work for the lump sum price named in the bid. A performance bond in the sum of $50,000 was executed, and also the statutory labor and material bond in a like amount. By reference the contract incorporated the specifications which set forth the number of acres in each class of clearing as shown on the map, indicating, however, that the acreage was 'estimated--not guaranteed.'

Plaintiff proceeded with the work of clearing the land, as required by the contract. No claim is made that he did not perform in a proper and satisfactory manner. He discovered in the course of his operations that the land in some of the parcels cleared exceeded materially the figures represented to him. Thereupon he discussed the matter with the engineer director of the defendant and was assured that while some parcels might overrun others would quite probably contain less than the acreage shown on the map, and that the total acreage to be cleared would be approximately as contemplated. Subsequent conversations were of like tenor. At the insistence of defendant, plaintiff completed the contract. He then procured a competent engineeer to make a survey of the land that he had cleared. The result indicated that plaintiff had actually cleared 545.46 acres. The trial court determined the the land cleared exceeded the indicated acreage on defendant's map, on which plaintiff relied in submitting his bid, by 246.77 acres, and that such excess should be classified as brush clearing.

Plaintiff sought an adjustment of the matter but defendant took the position that inasmuch as the contract was based on the payment of a lump sum for the doing of the work it was not liable for more than the amount stipulated. Thereupon plaintiff instituted the present action, seeking relief on the bases of fraud, misrepresentation, and mistake. The prayer for relief asked specifically for reformation of the contract and for general relief in accordance with equity and good conscience. After listening to the proofs of the parties, the trial judge made a finding of facts, which he dictated on the record, substantially in accordance with the claims of the plaintiff. A written opinion based on such findings was filed, setting forth that the map and acreage specifications prepared and used by defendant were inaccurate and misleading, that such fact was or should have been known to defendant's officers and agents, that plaintiff relied upon the information given him in preparing his bid, and that as a result the defendant had been unjustly enriched.

The trial court determined that the contract should be reformed in such manner as to give effect to the intention of the parties and do justice between them. It was his opinion that the specifications for the doing of the work should have recited 'brush clearing 266.12 acres', and that as a matter of computation the bid submitted by plaintiff, on the basis on which he prepared it, would, in such event, have been $91,317.20. A decree was entered in accordance with the opinion filed. Defendant has appealed, and plaintiff has cross-appealed on the ground that the court was in error in fixing the price for clearing the excess acreage at $130 per acre instead of $200 per acre.

The record fully substantiates the conclusion that plaintiff relied on the map, and the acreage figures thereon, in submitting his bid and entering into the contract. It is undisputed that he did not...