Graham v. City of Grand Rapids ( 1905 )

Ostrander, J.

(after stating the facts). The proposition to the city is to equip boilers, and contains an express guaranty of results. It is also an offer to install and remove the device, “if found unsatisfactory by you.” The device was installed, and later was ordered to be removed. No term of trial was agreed upon. Section 31, tit. 9, of the charter (Act No. 374, Local Acts 1897) requires the board of public works to keep a record of its proceedings and determinations, and that “ therein shall be shown the vote of each member voting upon every question brought before and decided by said board.” Section 30 of title 9 of the charter reads, so far as applicable here:

“All contracts made by the board of public works shall be in the name of the city of Grand Rapids and be signed by the mayor of said city and the president of said board after the same shall have been approved by the board and the common council of said city.”

Without determining whether, by estoppel or otherwise, the city can be held liable upon a contract not in writing, we are of opinion that the judgment should be affirmed, for the reason that the evidence which we can consider, viz., the record action of the board of public works, shows that the device was found to be unsatisfactory. It cannot be said either that plaintiff’s assignor or the city relied entirely upon the warranty made, or that a trial of the apparatus would have been permitted, except upon the promise to remove “if found unsatisfactory by you.” On the contrary, we think it should be said, all of the circumstances, including the nature of the appliance, being considered, that neither the plaintiff’s assignor nor the city contemplated that the question of satisfaction might be left, at any time or in any event, to the judgment of judicial triers. The case is ruled by Walter A. Wood Reaping & Mowing Machine Co. v. Smith, 50 Mich. 565.

Judgment affirmed.

McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.