Springer v. City of Detroit

• Decision Date: 16 October 1894
• Citation: 60 N.W. 688,102 Mich. 300
• Court: Michigan Supreme Court
• Parties: SPRINGER v. CITY OF DETROIT.

60 N.W. 688

102 Mich. 300

SPRINGER v. CITY OF DETROIT.

Supreme Court of Michigan

October 16, 1894

Error to circuit court, Wayne county; Henry N. Brevoort, Judge.

Action by Matilda L. Springer against the city of Detroit for damages. Judgment for plaintiff. Defendant brings error. Reversed.

John J. Speed, for appellant.

Edward S. Grece, for appellee.

LONG J.

This action was brought to recover damages for an injury received by plaintiff by a fall upon a sidewalk, which it is claimed was not in a safe condition for travel. The declaration did not contain an allegation that the claim had been presented to the common council, and notice was attached to the plea that defendant would insist that the claim had never been presented for audit and allowance, as required by section 17 c. 5, of the charter of the city of Detroit. At the opening of the trial in the court below, objection was made to the introduction of evidence in the case for that reason. This objection was overruled, and the testimony admitted. At the close of the trial, defendant's counsel requested the court to charge that, inasmuch as the claim had not been presented to the common council, verdict must be for defendant. This was refused. Plaintiff had verdict and judgment. The refusal of the court to give this request presents the only question here for consideration.

The provisions of the charter referred to are as follows: "The common council shall audit and allow all accounts chargeable against the city, but no unliquidated account or claim or contract shall be received for audit or allowance unless it shall be accompanied with the affidavit of the person rendering it, to the effect that he verily believes that the services or property therein charged have been actually performed or delivered for the city; that the sums charged therefor are reasonable and just, and that to the best of his knowledge and belief no set-off exists, nor payment has been made on account thereof, except such as are included or referred to in such account or claim. It shall be a sufficient bar and answer to any action or proceeding in any court for the collection of any demand or claim against said city that it has never been presented to the common council for audit and allowance; or if on contract, that it was presented without such affidavit and rejected for that reason; or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it." Counsel for defendant claims that, under these provisions of the charter, no suit can be commenced or maintained against the city of Detroit, in this class of cases, until the same shall have been presented to the common council, and it shall have had reasonable time to investigate and pass upon the claim. Our attention is called by counsel for defendant to the language of these provisions, and it is contended that there is a distinction between these provisions and those of the charter of the city of Adrian which were passed upon in Lay v. City of Adrian, 75 Mich. 438, 42 N.W. 959.

The Adrian charter is as follows:

"The council shall audit and allow all accounts chargeable against the city; but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with the affidavit of the person rendering it to the effect that he verily believes that the services or property therein charged have been actually performed or delivered to the city; that the sums charged therefor are reasonable and just; and that to the best of his knowledge and belief no set-off exists, nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim; and every such account shall exhibit in detail all the items making up the account claimed and the true date of each.

"It shall be a sufficient defense in any court or to any action or proceeding for the collection of any demand or claim against the city that it has never been presented verified as aforesaid to the council for allowance; or that the claim was presented without the affidavit aforesaid and rejected for that reason; or that the action or proceeding

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