City of Detroit v. Grant

Grant, J. (after stating the facts). 1. Grant had agreed to save the city harmless from all loss and damage which the city should suffer in consequence of any negligence on his part in doing the work. Mr. Dooley sued both him and the city. By agreement between Grant and Dooley, the suit as to Grant was discontinued. He knew he was liable for any damage that might result. Instead of contesting the suit, he chose to procure its discontinuance as to him, and apparently without any notice to or consent of the city. No written notice is required in cases of this character, as is required to be given to the grantor in a warranty deed upon his covenant of warranty for breach thereof. The authorities make a difference between notices required to be given of' the pendency of suits involving title to real estate and other [629] actions. Mason v. Kellogg, 38 Mich. 132; Hines v. Jenkins’ Estate, 64 Mich. 469 (31 N. W. 432). Having once been made á party to the suit, the defendant needed no further notice of its pendency, or of his right and opportunity to defend. It is therefore unnecessary to determine the sufficiency of the notice given. Upon this question the authorities do not seem to be agreed. See Chicago City v. Robbins, 3 Black, 418; Consolidated Machine Co. v. Bradley, 171 Mass. 127 (50 N. E. 464, 68 Am. St. Rep. 409). 3. The payment of defendant’s claim in full did not operate as a satisfaction of his liability under his contract with plaintiff. He was liable upon his contract and bond. The amount of the claim against the city could, not be determined until judgment was rendered. Defendant was evidently advised that the city could not avoid payment after the work was satisfactorily done, and instituted suit to enforce acceptance. In this condition of affairs the plaintiff accepted the work and paid defendant, instead of contesting suit and keeping defendant’s money tied up for a long time. This was a kindness and benefit to defendant, and did not release him from the obligation of his contract. Judgment affirmed. The other Justices concurred.