other than this certificate of its approval by the board of public works, as required by and set forth in section 52, and that no record was made showing the manner in which the lands upon said roll were assessed. Nowhere, then, does it appear, unless taken for granted, that the benefits of this work equaled the tax laid by the comptroller, or that the lands were assessed in proportion to the benefits specially derived by them from such work.

We think that this cannot be taken as granted; that this roll should show expressly that the assessment was: made on the basis which the charter lays down. And this is not an irregularity which is cured by the provision that the roll, after indorsement, shall be prima facie evidence of the validity of the tax. It is jurisdictional, and must appear upon the roll, and we think it should also appear of record somewhere that the benefits to the whole property included in the taxing district will equal the whole cost of the proposed work. Warren v. Grand Haven, 30 Mich. 24-30; White v. Saginaw, 67 Id. 40, 41, 42 (34 N. W. Rep. 255).

Since this suit was begun, the charter has been amended (Local Acts of 1889, pp. 704-714). Section 17, as amended, provides, in effect, that there shall be a finding of benefits, as it now provides that the expense of constructing a sewer shall be assessed upon the lots and premises specially benefited thereby, according to the benefits therefrom: Provided, that if such expense shall amount to a larger sum than the benefits, then the costs, exceeding the benefits, shall be chargeable to the wards in which the improvement is to be made; and such excess could not be ascertained without a finding of benefits. Local Acts of 1889, pp. 714, 715.

Under the section as it stood when this tax was laid, the whole cost was laid upon the property especially benefited. The plaintiff had a right to demand that there

should be a finding of benefits, and also that it should appear upon the assessment roll, or somewhere of record, in what manner these benefits were apportioned, and under what rules. He had a right to know upon what standard or basis the comptroller acted, that he might ascertain whether or not it was a legal one. Otherwise the comptroller might act upon his own notions, and there would be no means by which to ascertain what those notions were, or to determine whether or not the statute had been complied with.

We do not consider it necessary to consider any of the other objections to this tax.

The judgment of the court below is therefore affirmed, with costs.

The other Justices concurred.

ALBERT E. FRENCH V. SETH E. ENGLE.

Costs-Judgment reduced by set-off below $100.

In this case it is held that the plaintiff established a claim exceeding $100, which was reduced by set-off, and that he is entitled to costs.

Error to Wayne. (Brevoort, J.) Argued October 30, 1889. Decided December 28, 1889.

Assumpsit. Defendant brings error. Affirmed. The facts are stated in the opinion.

S. E. Engle, in pro. per., for appellant.

Edwin F. Conely, for plaintiff.

CHAMPLIN, J. The question in this case is one of

costs.

The action was assumpsit, and the plaintiff filed a bill of particulars amounting to over $300. The defendant pleaded the general issue, and gave notice of set-off, and filed a bill of particulars for $365, and notice of recoupment, under which he claimed $110. The jury returned a verdict in favor of plaintiff for $60, and the court rendered judgment for that amount, with costs.

The only question is whether it appears that the plaintiff's claim, as established at the trial, exceeded $100, and that the same was reduced by set-off.

We think it did, and that it was reduced by set-off; and the judgment is affirmed.

SHERWOOD, C. J., MORSE and CAMPBELL, JJ., concurred. LONG, J., did not sit.

ABRAM VAN VRANKEN ET AL. V. THE UNION NEWS

COMPANY.

Contract-Agency-Ratification.

In this case it is held that the authority of defendant's local agent to make the contract sued upon is sufficiently shown by the evidence, which question should have been submitted to the jury, as also the question of defendant's ratification of said contract.

Error to Wayne. (Gartner, J.) Argued October 11, 1889. Decided December 28, 1889.

Assumpsit. Plaintiffs bring error. Reversed. The facts are stated in the opinion.

78 217 85 142

78 217

109 300

Sands F. Moore, for appellants.

Moore & Canfield, for defendant.

SHERWOOD, C. J. The plaintiffs in this case reside in Detroit, and wished to start and distribute free, to passengers on incoming trains, an advertising newspaper to be called "The Hotel Register." The defendant is a New York corporation, and had the exclusive control of the facilities for the circulation of such paper, and was distributing such a paper at Detroit, called "The Visitor," at that time. Dembitz was the defendant's local manager at its office at the Michigan Central depot in Detroit, and Mr. Walsh was the general manager of the defendant's western division. Mr. Wildman saw Walsh and told him of plaintiffs' project, and was informed by Walsh that arrangements could be made for having the Hotel Register distributed on the trains, and about a week thereafter he called on Dembitz to make a contract for such distribution. Mr. Dembitz, after consulting Mr. Walsh in the matter, informed two of the plaintiffs that he was ready to make a contract with the plaintiffs, and plaintiffs claim they did make with said defendant a certain contract, partly oral and partly written, and that the written part was as as follows:

"For a valuable consideration to us in had paid, the receipt whereof is hereby acknowledged, we, the undersigned, the Union News Company of Detroit, Michigan, hereby agree to and with the publishers of The Daily Hotel Register, of Detroit, Michigan, as follows:

"That we will hand to each and every passenger, each and every day of the week (except Sundays), for the period of one year from the date hereof, a copy of the said The Daily Hotel Register, upon all incoming trains to Detroit; that is to say, upon the following trains, to

"In witness whereof we have hereunto set our hand this fifteenth day of September, A. D. 1888.

"UNION NEWS Co.,
"S. Dembitz, Mgr."

That the verbal portion was that the consideration was $35 per month, to be paid in advance each and every month; that the month for which payment was to commence should not begin to run until said newspaper should be delivered to said defendant for distribution. Such is the contract claimed to have been made, except that by mistake of the scrivener the defendant's residence is represented as being at Detroit instead of New York.

Plaintiffs aver that they paid defendant, on the execution of the contract, $35 in advance, and that the newspaper was published for the first time on September 22, 1888, and on the same day delivered to the defendant; that on October 22, thereafter, and ever since that time, the defendant has neglected and refused to carry out Said contract on its part with the plaintiffs, although the plaintiffs have always been ready and willing on their part to perform the same, and have repeatedly tendered such performance. Plaintiffs claim large damages, and in their declaration specify the items.

Defendant pleaded the general issue,

"With notice that the signature was was fraudulently obtained by representing that the contract sued on was a letter, and not a contract."