Wheat v. Van Tine

Grant, J. (after stating the facts). Plaintiff’s lots were vacant and unimproved. Near the crest of the hill • opposite one lot a mudhole existed in the center of the street, which was bad in wet weather. There were no gutters on the sides of the roadbed. The village authorities and plaintiff recognized the necessity and propriety of fixing the street and the culvert. Plaintiff admitted that he pointed out to the defendants how they might make a grade and excavation by reducing the surface of the street opposite his land, at no point more than eight inches, and thus obtain sufficient earth to fill the street on each side of the culvert which was then being constructed. This suggestion or request from him was reported to the common council. The common council approved the proposition, and directed the work to be done — without entering it upon their records — and one of the defendants reported the action of the council to the plaintiff. Soon thereafter, and before the work was completed, plaintiff went away, and before he returned the work was accom [317] plished. The edge of the roadbed was 17 feet distant from the plaintiff’s lot. It appears to be 'conceded that the work was essential to a good roadbed, and that it was properly executed. The roadbed before this work was done was lower than the surface of plaintiff’s lot, but just how much does not distinctly appear. His own witness, one Leonard, a surveyor, testified that the bottom of the gutter was three feet and one or two inches from the surface. He could not tell how much higher the roadbed was than the gutter. He further testified that gutters were necessary, and that the work was “just what it ought to be.” Plaintiff’s own employes removed earth from the street to his lot during the progress of the work. Plaintiff makes no complaint of the work in so far as it corresponded with his consent and understanding as above stated. His complaint is that the removal of the earth was not in accordance with that understanding. He testified : “I had consented to the removal of a part of the surface soil, but below what we agreed upon I claim is an unwarranted interference.” Whether the earth was excavated to a greater depth than eight inches was a disputed question of fact. In so far as this work was authorized and assented to by the plaintiff, he is now estopped to complain. No grade had been established, and therefore plaintiff could not recover damages against the municipality. Cumming v. Dixon, 139 Mich. 269. The main complaint is that parol testimony of the action of the common council was allowed. Parol evidence is not admissible to contradict the record of the proceedings of the common council. It is admissible, however, to show facts omitted therefrom. The failure of a clerk to properly enter such proceedings cannot affect the rights of individuals who have acted upon the faith of the action of the council, in fact duly taken, but not recorded. Township of Taymouth v. Koehler, 35 Mich. 21. [318] Whether there is evidence in this case showing an unrecorded action of the common council within the above-cited decision it is not necessary to determine, as the judgment must be affirmed on another point. The main claim of the defendants is that bills were rendered for this work and were approved by the council. These bills did not specifically state where the work for which they were rendered was done. Under the above authorities it was competent to show by parol that the bills included this work, and that they were approved by the council with knowledge of that fact. Such testimony did not contradict the record, but only explained it. What the common council could originally authorize they could subsequently ratify. The allowance of the bills was a sufficient ratification. Davis v. Mayor, etc., of Jackson, 61 Mich. 530. The court instructed the jury that— “The defense claims that, as the work progressed after it was completed, the common council had knowledge of what was being done, and that they afterward ratified what had been done. Now that is a question of fact for you. If the council, subsequent to the completion of the work, ratified the action of the commissioner and the committee and the president, that would be a complete defense. * * * If, as I say, they had knowledge, as a body, of the work progressing, and then deliberately paid the bills understandingly, that would be evidence which goes to you upon the question as to whether the council had ratified and accepted and adopted the work of the commissioner and approved of it. ” The fact of ratification was conclusively established, and the court might properly have directed a verdict upon this ground. It therefore becomes unnecessary to discuss other alleged errors. Judgment affirmed. McÁlvay, C. J., and Carpenter, Blair, and Hooker, JJ., concurred.