Turner v. Grand Rapids

• Decision Date: 10 May 1870
• Citation: 20 Mich. 390
• Court: Michigan Supreme Court
• Parties: Samuel M. Turner v. The City of Grand Rapids

20 Mich. 390

Samuel M. Turner v. The City of Grand Rapids

Supreme Court of Michigan

May 10, 1870

Heard May 6, 1870

Case made from the Recorder's Court of Grand Rapids.

This was an action of assumpsit brought in the Recorder's Court for the city of Grand Rapids, by Samuel M. Turner against the city of Grand Rapids. The plaintiff declared specially: "For that whereas heretofore to wit, on the 16th day of January, A. D. 1869, at the city of Grand Rapids aforesaid, in consideration that said plaintiff at the special instance and request of the said defendants had before that time constructed a certain culvert under a certain highway called and known as Fifth street, in the city of Grand Rapids aforesaid, and furnished the materials therefore for the said defendants, they, the said defendants undertook and then and there faithfully promised the said plaintiff to pay him so much money as he therefor reasonably deserved to have of the said defendants. And the said plaintiff avers that he therefore reasonably deserved to have of the said defendants the sum, of six hundred dollars lawful money of the United States, to wit, at the city of Grand Rapids aforesaid, whereof the said defendants afterwards, to wit on the day and year last aforesaid then had notice." The declaration also contained the common counts in assumpsit.

The defendant pleaded the general issue and gave notice that on "the fourth day of May, A. D. 1868, said plaintiff entered into a contract with the defendant in which the said plaintiff, for and in consideration of certain covenants and agreements hereinafter to be mentioned, to be performed by this defendant, covenanted and agreed to and with this defendant to grade Fifth street in the said city of Grand Rapids, from Front street to Stocking street, furnish all the materials for the same, and construct therein all sluices, bridges, culverts, cross walks and sink holes, that were required by the plans and specifications and profiles of said work made by the City Surveyor, adopted by the Common Council," &c., and that the cause of action set forth in the plaintiff's declaration "was performed under said contract as modified by the parties in this respect, that a stone culvert was to be put in in lieu of the brick culvert," and that the plaintiff did not perform his agreement.

The case was tried before the Recorder without a jury; and he rendered a judgment for the plaintiff. It now comes before this Court upon a case made to review the ruling of the Court below upon the admission of evidence.

Judgment affirmed with costs.

H. E. Thompson, for plaintiff.

G. H. White, for defendant.

OPINION

Christiancy, J.

This was an action of assumpsit upon a quantum meruit for constructing a certain stone culvert at the request of the defendant. The plaintiff had previously taken a written contract to build it of brick. But the defendant, by resolution of the Council, subsequently directed it to be constructed of stone; and the plaintiff's claim was really for extra work and expenses, beyond what it would have cost if built of brick under the contract.

The case was tried in the Recorder's Court, before the Recorder, without a jury, and the plaintiff obtained judgment for $ 226.90. It is brought here upon a case made, setting forth the record, the evidence, the rulings of the Court and a full narration of the proceedings, for the questions of law involved.

The main object for which the case was made and brought here, as stated by the counsel for the city, was to obtain our decision upon the question, whether, under the charter (Laws of 1857, p. 298, §§ 1 and 2, p. 303, §§ 15 and 16, p. 292, §§ 8 and 11, and laws of 1859, p. 211, §§ 8 and 11), a claimant can sustain such an action against the city, before presenting to the Common Council his account, setting forth the items of his demand in detail, verified by affidavit.

But as it appears beyond dispute by this record, that the plaintiff did, before bringing his suit, present such an account, verified by affidavit, to the proper committee of the Council, and that the Council did act upon the whole subject, covered by this claim, adopting the estimate of their own committee appointed to settle with the plaintiff, it is quite clear, as we intimated upon the argument, that this question is not involved.

We proceed, therefore, to notice such other errors assigned upon the rulings of the Recorder, as the counsel for the defendant relied upon, on the argument and as are properly involved in the case.

1. If there was any error in admitting the evidence of the plaintiff to show that he had built the culvert eighty-two feet long at the request of the committee on streets, when by his contract, he was to follow the direction of the City Surveyor, who only required it to be eighty feet, that error was subsequently cured, as the Court expressly rejected his claim for the two feet in excess, and allowed him for the eighty feet only.

2. There was no error in allowing the plaintiff to show that the cost of building the culvert was greater, owing to the state of the weather and the lateness of the season, in connection with the substitution of stone for brick, and that the reason he proceeded at that time instead of waiting for better weather, was that the City Surveyor directed him to proceed at once.

But a more serious question arises upon the rejection by the Court, of a question put by the defendant to the plaintiff on his cross-examination.

The plaintiff having testified, on his direct examination upon the whole subject of the contract to construct the culvert of brick, the change made by the Council requiring it to be of stone, the relative cost of the two modes, and the actual cost of constructing it of stone; and his testimony clearly tending to show that it had cost him more to build it of the latter material than it would of the former, was, upon the cross-examination, asked if he had had a conversation with Alderman Ives in reference to this contract; and he having answered in the affirmative, and that that conversation was "right away after the culvert was built, probably about the first December, 1868," the record proceeds to state "counsel for the defendant, on cross-examination, asked said witness as follows: 'Previous to the conversation referred to with Ives, had you not asked the Common Council to appoint a committee to settle with you for putting in this culvert and grading the street?' Defendant's counsel stated that the question is preliminary to the question that he shall ask the witness, which is, if he did not, in that conversation, say to Alderman Ives that the culvert was put in under his contract with the city, in lieu of the brick culvert and at a much less expense. To which question plaintiff's counsel...