Weinberg v. Regents of University of Michigan

• Decision Date: 27 October 1893
• Citation: 97 Mich. 246,56 N.W. 605
• Court: Michigan Supreme Court
• Parties: WEINBERG v. REGENTS OF THE UNIVERSITY OF MICHIGAN et al.

56 N.W. 605

97 Mich. 246

WEINBERG v. REGENTS OF THE UNIVERSITY OF MICHIGAN et al.

Supreme Court of Michigan

October 27, 1893

Error to circuit court, Washtenaw county; Edward D. Kinne, Judge.

Action by Julius Weinberg against the Regents of the University of Michigan, impleaded with James B. Angell, James H. Wade, and Charles R. Whitman, to recover the value of certain materials furnished to a subcontractor in the building of the university hospital. There was a judgment overruling a demurrer to the declaration, and defendants bring error. Reversed.

Charles R. Whitman, (Thomas M. Cooley, of counsel,) for appellants.

Bogle &amp Marquardt, for appellee.

MONTGOMERY J.

The plaintiff brought suit against the Regents of the University of Michigan, James B. Angell, James H. Wade, and Charles R Whitman to recover the value of materials furnished to one Lucas, a subcontractor in the building of the university hospital. The right of action is claimed under Act 94, Laws 1883, as amended by Act 45, Laws 1885, (3 How. St. � 8411a.) The declaration avers: "That the Regents of the University of Michigan is a public corporation organized and existing under the laws of the state of Michigan, created for the government of the University of Michigan, which said institution belongs to and is the property of the state of Michigan, and is maintained at the expense of this state. That the defendant James B. Angell is the president of the Regents of the University of Michigan. The defendant James H Wade is the secretary. That the defendant Charles R. Whitman is a member of the board. That on or about the months of July and August, 1890, the Regents of the University of Michigan advertised for proposals for the erection and completion of the hospital building for the University of Michigan, which said hospital building, so to be erected and completed, was to be and has been completed at the expense of this state. That afterwards, to wit, on the first day of October, 1890, in pursuance of said advertisement and proposals received, the bid of one William Biggs, of the city of Ann Arbor, was accepted, and on or about the date aforesaid the Regents of the University of Michigan entered into a contract with said William Biggs for the erection and completion of said hospital, in consideration of the sum of, to wit, $78,556, which said contract was signed by the defendants James B. Angell and James H. Wade, president and secretary as aforesaid, and by said William Biggs. That the defendant Charles R. Whitman was a member of the committee on buildings and grounds, appointed by the Regents of the University of Michigan, which building committee was given full authority to act for the said Regents of the University of Michigan until otherwise ordered. That said Charles R. Whitman, as a member of said committee, was principally in charge of said undertaking of building said hospital. That afterwards the said William Biggs, by contract with one John Lucas, sublet a portion of the job for the building and erection of said hospital. That the plaintiff, Julius Weinberg, is a laborer and material man, engaged in the business of buying, selling, and furnishing stone, sand, and other materials to contractors and other persons engaged in building and other business in which such materials are used. That after the contract so made as aforesaid by the regents with Biggs, and by Biggs with said John Lucas, said Lucas, subcontractor as aforesaid, applied to the plaintiff to furnish stone for use in said hospital building, for which said Lucas agreed to pay plaintiff eighty-five cents for every sixteen feet in length by one foot thick and one foot high, as the same was laid in the wall of said building. And the plaintiff further says that the defendants, the Regents of the University of Michigan, James B. Angell, James H. Wade, and Charles R. Whitman, were the board, officers, and agents of the state of Michigan, and made and entered into the contract for the erection of said hospital for and on behalf of the state of Michigan, and had the same built at the expense of this state; that it was the duty of said defendants, as aforesaid, under section 8411a, as amended by Act 45, Public Acts of 1885, and sections 8411b and 8411c, Howell's Annotated Statutes, to require sufficient security by bond for the payment by the contractor and all subcontractors for all labor performed and materials furnished in the erection, repairing, or ornamenting of said hospital building." The declaration further avers that plaintiff furnished the material in question relying on such bond, and also avers that he has not received his pay, and concludes: "And plaintiff further says that said defendants, in disregard of their duty aforesaid, negligently and carelessly, and in disregard of the rights of the plaintiff, neglected to require of said contractor the bond aforesaid, and permitted the said contractor to enter into said contract for the erection of said hospital building, and to enter upon the performance thereof, without giving security, by bond or otherwise, for the payment by said contractor and all subcontractors for the labor and materials furnished by him or any subcontractor, as required by said statute." To this declaration the defendants demurred. The plaintiff joined in demurrer, the demurrer was sustained as to the individual defendants, and overruled as to the Regents of the University, and the plaintiff was permitted to amend as to individual defendants. The Regents of the University of Michigan bring error. The plaintiff, has, however, amended his declaration as against both defendants, and it is requested by both parties that the question of liability be here determined.

It is contended on behalf of the defendant that the statute does not apply to the Regents of the University of Michigan; that the university buildings are not built at the expense of the state, nor are they contracted for on behalf of the state within the meaning of this statute; that they are constructed by a constitutional corporation which may sue and be sued, and has power to take and hold real estate for any purpose which is calculated to promote the interests of the university. The section, as amended by Act 45, Laws 1885, provides "that when public buildings, or other public works or improvements, are about to be built, repaired, or ornamented under contract, at the expense of this state, or of any county, city, village, township, or school district thereof, it shall be the duty of the board of officers, or agents, contracting on behalf of the state, county, city, village, township or school district, to require sufficient security by bond, for the payment by the contractor, and all subcontractors, for all labor performed, or materials furnished in the erection, repairing or ornamenting of such building, works or improvements." We think the statute sufficiently broad to cover the contract in question. Act 145, Laws 1889, appropriated "for the purchase of a site and for the erection of a hospital, for the year 1889, the sum of $25,000, and for the year 1890, the sum of $25,000, provided, however, that no part of the above-named appropriations for the purchase of a site for and the erection of a hospital shall be paid out of the treasury until the city of Ann Arbor shall have bound itself to contribute the sum of $25,000 for the same purpose." Section 2 provides for the assessment of taxes to pay this appropriation. Certainly, then, the undertaking was at the expense of the state and of the city of Ann Arbor; the contribution of the city of Ann Arbor, however, becoming state property upon its appropriation. We think it clear, also, that the regents who acted in the matter were agents contracting on behalf of the state. They are officers elected by the voters of the state, whose duties relate to the control of public property. It is altogether too technical to say that the regents are contracting on behalf of the university; for, while this is in a sense true, it is also true that they, by the very contract in question, provided for the expenditure of state money, and for the construction of a building which it would, I think, be news to most residents of Michigan to learn is...