Goodrich v. City of Detroit

Campbell J.: This case comes up for the review of a judgment, rendered by the Wayne Circuit Court, upon an agreed state ment of facts. Plaintiffs agreed with the city of Detroit to do certain paving. The contract contained the following clauses* “ Payments for said work will be made from the proceeds of special assessments, made for that purpose upon each block paved, and not otherwise. And it is expressly understood and agreed, by and between the parties to this contract, that the parties of the first part shall not receive Or demand payment for said work, until money for the-payment of the same shall have been collected by the tity collector, or such other person as shall be appointed by the Common Council for that purpose, and actually paid' into the city treasury upon the special assessment rolls aforesaid. The said party of the second part undertakes only to use reasonable care and dispatch, in the preparation and collection of said special assessments, and the payment of the money proceeds thereof after collection, and upon, demand of the said parties of the first part.’’ Assessments were duly made, and placed in the hands of the Collector, who collected $1,761.43, and failed to pay it over. October 1st, 1861, a committee of the council reported him as a defaulter, and. suit Avas brought on his bonds November 18th, 1861. A demurrer was put in to [287] the declaration January 2d, 1862. No further steps had been taken when the present suit was commenced) May, 1863. The first question that' arises, is, whether the city is liable directly on the contract, the money having been received by the collector. The charter of the city provides that no public work shall be contracted for or commenced until an assessment has been levied to defray the expense, and no such work shall be paid or contracted to be paid for, except out of the proceeds of the tax or assessment thus levied. P. 89, § 11, City Charter. The treasurer is required to have custody of all moneys, and keep each fund separate, and pay no warrant against any fund unless he has money belonging to it. And moneys can only be paid upon a warrant specifying the particular fund on which it is drawn. P. 28, § 10. It is manifest from these, and other clauses of a similar purport, that the city corporation has no power to make itself responsible for the price of any public work. Such work can only be paid for by funds actually in the hands of the city treasurer, provided for the specific purpose. The contract recognizes this, and expressly provides that the contractors shall receive no payment until the money shall not only have. been collected, but actually paid into the treasury. And it further provides, that the city shall only be bound to use reasonable care and dispatch, in the collection and payment. The contractors, in other words, recognizing the ordinary method provided by law for raising the fund, agree to look to that, and to that only. We are clearly of opinion that the city was not, under the agreement, bound to account for the money, until placed in the hands of the treasurer. But it is claimed that there is a liability for neglecting to enforce with diligence the official bond of the collector, to compel a restoration of the money received [288] by' him and not accounted for. Waiving the question whether, under the common counts in assumpsit, such a cause of action can .be supported, and the further question when mandamus will lie, we think no such neglect is made out. The case agreed upon finds that the city commenced suit, that the declaration was demurred to, and that no further steps have been taken. As the law requires suits to be under the charge of certain officers designated, there can be no negligence in putting the case in their hands. Iiow far the city could then go in expediting matters, or in remedying delays in the course of the suit, is not a question of law, but must depend upon some showing; and if there has been any default or neglect, it must be agreed upon, or else proven by evidence. The case before us is one in which the parties, waiving the production of any evidence, have declared what facts are to be assumed as true. No fact not set forth in the case can be thus taken. It was claimed on the argument that this agreed case is open to any inferences of fact which might be allowed to be drawn from evidence, and that negligence might be so inferred. We are not prepared to hold that, from the simple facts before us, if shown by proof in the usual way, any such inference would be justifiable. But the point is not material, for we are of opinion that such an agreed case is equivalent to a finding of facts by a court, or the special verdict of a jury, in- which every fact necessary to a recovery must be expressly found. It could never have been the intent of the statute to provide expressly for a mere s^ulation concerning evidence, which should allow the Court to draw inferences from inconclusive facts, without the power of removing doubts by further "proof. Still less could it have designed to forbid a jury — (which is the most appropriate body to draw inferences of fact) — from, determining what facts are to be inferred from the proof, when the right of trial by jury has been so jealously preserved. The [289] refusal of a jury, and the provisions requiring the Circuit Court to give judgment on the case agreed upon, and the provisions allowing the Supreme Court, without any assignment of error, to correct any alleged errors in the judgment below, all point to the same conclusion, and negative the idea that the facts agreed upon can be treated in any other way than as a special finding. See Comp. L. §§ 3421, 4346. We think the judgment below- should be affirmed, with costs. Manning and Cheistiancy JJ. concurred. Martin Ch. J. did not sit in this case.