Kenyon v. Charlevoix Improvement Co.

Gbant, J. (after stating the facts). The errors assigned relate exclusively to the rulings of the court upon, the measure of recovery. The usual price charged by plaintiff and fixed by the board of supervisors for making the abstract was $19.75. The printer’s bill was $30. ' This increase in- the printer’s bill over the price stated in plaintiff’s letter was due to a change after the printing was begun. He claims to have paid the county treasurer $60. If these are all legitimate charges, plaintiff recovered $390.25 for his services in reading proof, assembling, signing, and sealing 400 printed copies. Plaintiff testified that he could do this work in two days. One Adams, register of deeds of Antrim county, a witness for plaintiff, testified that he could sign and seal the 400 copies in two or three hours; that all the proof reading could be done in about an hour; and that the printer does all the rest of the work. Three witnesses, including plaintiff, all abstractors of more or less experience in the counties where they resided and did business, testified in his behalf on the value of these services, and the method of computing them. Upon cross-examination the court refused to permit the defendant’s counsel to show the value of the time spent by the plaintiff in reading proof, assembling, signing, and sealing the copies. Plaintiff rendered a bill for $500, filed a bill of particulars claiming $1,200, testified that he charged defendant $2.50 each for his work on the 400, and 50 cents each for the tax certificates, and that the original abstract was worth $19.75, making a total of $1,219.75. One of his witnesses fixed the value at $1,975, another at $770; while the expert witnesses for the defendant, including Mr. Clarence M. Burton, of Detroit, whose abstract business is the most extensive in the State, testified that they usually made no charges for such copies. When one seeks to recover hundreds of dollars for a few hours’ work, he must be able to show either an express contract, or a custom known to the contracting parties, or so open and notorious that the parties must in law be held to have contracted with reference to it. Lamb v. Hen [107] derson, 63 Mich. 302 (29 N. W. 732); Scott v. Maier, 56 Mich. 554 (23 N. W. 218, 56 Am. Rep. 402); Schurr v. Savigny, 85 Mich. 144 (48 N. W. 547); Eaton v. Gladwell, 108 Mich. 678 (66 N. W. 598). If such a custom had existed locally in Charlevoix county, that would not bind a party residing elsewhere, who had no notice or knowledge of it. Pennell v. Transportation Co., 94 Mich. 247 (53 N. W. 1049); Eaton v. Gladwell, 108 Mich. 678 (66 N. W. 598); Hutchings v. Ladd, 16 Mich. 493. See, also, Milligan v. Furniture Co., 111 Mich. 629 (70 N. W. 133); Reynolds v. Insurance Co., 36 Mich. 131, 142. The defendant in this case had no notice or knowledge of any such custom. No custom was shown. Each witness for the plaintiff arrived at the damages upon a different basis, as is evidenced by the fact that no two agreed upon the measure of damages. One witness, when asked what 400 printed copies, like those here in issue, would be worth, testified: “400 abstracts would come to $7,700. If I were making 400, I shouldn’t discount it less than one-tenth; making $770 as the least I would do the work for. ” He immediately testified that he meant a discount of 90 per cent. When asked on cross-examination what was the basis for such a charge, he replied: “Well, sir, if I were in the abstract business, I should protect my business. I would estimate or calculate that in 20 years I should abstract at least half of those lots. * * * To a certain extent I base my charge of $770 upon the earnings I would lose during the next 20 years.” Such testimony is, of course, too indefinite and uncertain to furnish any basis for damages. If there was no custom controlling the price of such copies, the rule of damages would be their actual value. The time spent in the work and the value of such time are, in such a. case, important elements. Plaintiff arbitrarily charged $2.50 apiece for the copies. He could as well have charged any other sum. He might as well have- charged $19.75 for [108] each as an original abstract, or $7,700 for the lot. But it is not claimed that'defendant contracted for 400 originals. He asked plaintiff to bring the abstract down to date, and to get a bid for printing 400 copies, with his certificate attached that the printed copy is correct. To this ^plain tiff replied that the printing of the copies would cost $15, and suggested that the certificate of the county treasurer should be attached. Defendant replied, in substance, to have the work done “as per your letter.” The contract is contained in these three letters. Plaintiff thereby agreed to bring defendant’s abstract down to date, to get 400 copies printed, to attach his certificate of the correctness of the copy, and to obtain the certificate of the county treasurer as to taxes. For these services the defendant agreed to pay the customary fees for the abstract, $15 for printing the copies, and a reasonable price for the other work,, as to which no price was mentioned. The contract was for one abstract and four hundred copies. Fees for making abstracts are based upon elements hereinafter referred to. Upon this no question arises. These copies had no additional value because certified by the abstractor to be correct copies. The copies would be just as valuable and useful if certified by any other person, official or layman, to be correct. The work of making copies of documents and certifying to their correctness is not enhanced in value by 'the fact that it is done by a lawyer, doctor, or abstractor. If some question had arisen upon the validity of defendant’s title under the abstract, and it had obtained the opinion of a lawyer as to its validity, and, desiring to have copies of such opinion to give to parties to whom it might sell lots, should contract with the lawyer to make a certain number of copies of his opinion, and attach his signature thereto that they were correct copies of the original, the basis of the lawyer’s charge, if no price was agreed' upon, would be the value of one opinion, and the value of his services for clerical work in making the copies and certifying to their correctness. If a doctor should give a patient a prescription, and the patient should ask him to make copies [109] thereof, and certify to their correctness, the doctor could charge for the one prescription, and for the copies only the reasonable value of his time and services in making them. An article may be of great value to the party to whom it is furnished, but that is not the criterion of the price to be paid. A machine may be useless for want of a piece , broken or lost. When replaced by another, it enables the purchaser to make large profits. If not replaced, he t makes great losses. But the implied contract is to pay only what the piece of machinery is reasonably worth. I can see no other reasonable basis for the plaintiff’s services in this case in making the copies. It is conceded he cannot recover for them as originals. He cannot recover the value to the defendant. There is no custom or basis for an arbitrary price. He cannot recover because he or his successor may lose some abstracts in the future. If he desired to get pay for such uncertain damages, he should have declined to make the copies, or should have informed the defendant beforehand of, the price he would charge. He chose, however, to rest upon an implied contract to pay what his services were worth. Three elements of value enter into an abstractor’s charges: (1) The use of the capital invested; (2) the services of the abstractor in preparing the abstract; (3) the liability of the abstractor to the purchaser of the abstract for damages resulting from defects in the abstract. This liability extends only to the person for whom the abstract is made, and not the grantee. 1 Am. & Eng. Enc. Law (2d Ed.), 221. This liability of the plaintiff was not enlarged by certifying to copies. This would have been the same if he had made but the one abstract. Under the rulings and instruction of the court, defendant would be compelled to pay upon a basis or custom with reference to which it did not contract, and to pay nearly $400 for not to exceed two days’ work, which required no skill and entailed no liability. It might have been $1,200 under plaintiff’s bill of particulars and testimony. The court should have admitted the testimony as to the [110] value of the time spent in the work; should have instructed the jury that no custom had been established; and that the prospective loss of earnings in the abstract business on account of the 4=00 printed copies was too remote and uncertain to constitute an element of value. The judgment should be reversed, and new trial ordered. Montgomery, J., concurred with Grant, J.