have to be made, and a court of equity cannot create such a contract for the parties, and the court was right in so holding. Objection was taken at the trial, which was had in open court, to the testimony of Browse T. Prentis, because the facts testified to were equally within the knowledge of Toms, the assignor of Macomb of several of the tax claims which were not allowed by the circuit judge in his decree; but as it very clearly appears that the testimony objected to had no influence with the circuit judge in giving construction to the contract between the parties, and upon that the circuit court reached his conclusion in the case, no harm was done by receiving the testimony, whether correctly or not. As to the question of costs on dismissing the bill as to B. T. Prentis, the defendants, nor either of them, did not appeal, and they are not in a situation to raise the question. The decree for aught that appears in the record, should be affirmed. The other Justices concurred. 78 260 $44NW 267 132 1658 d132 1660 78 260 142 1645 Public buildings-Contractor's bond-Liability of public officers for 1. Officers who contract for the erection of public buildings, and fail to require security from the contractor for the payment of labor and material claims, as required by Act No. 94, Laws of 1883, are liable in damages, at the suit of laborers and material-men injured thereby. Owen v. Hill, 67 Mich. 43; Plummer v. Kennedy, 72 Id. 295. 2. The liability of officers to pay for labor and materials furnished for the erection of public buildings, by reason of their failure to require security from the contractor for such payment as provided by Act No. 94, Laws of 1883, is more in the nature of a suretyship than a tort, when the officers have acted in good faith, and they are not bound to wait until suit is brought against them before making such payment. 3. Where a contractor for the erection of a public building was not required to give security for the payment of labor and material claims,-both parties being ignorant of the law requiring it, and on being thereafter requested to execute the required bond refused to do so, and made default in performance of the contract, which was completed at the expense of the other party, in a suit by the contractor for the balance claimed to be due under the contract, the defendant may deduct from said claim the amount paid for material furnished, and labor performed, for the plaintiff, and also the amount due from him for material and labor, and for the payment of which demands have been made upon the defendant's officers, who, by reason of their failure to require said bond, are personally liable for such claims. 4. Where, on the failure of a contractor to perform a building contract, the other party has a right to take possession of and complete the building, he is entitled to set off from the contract price all necessary and reasonable expenses incurred in its completion, and in a suit by the contractor he is entitled to an instruction to that effect to the jury. 5. Where a contractor had furnished certain material made especially for the building he had contracted to erect, which was unsuitable elsewhere, and the other party, on taking possession of and completing the building on the default of the contractor to complete it by the time specified in the contract, refused to receive such material, he is liable for its diminished value. Error to Bay. (Cobb, J.) Argued October 16, 1889. Decided December 28, 1889. Assumpsit. Defendant brings error. facts are stated in the opinion. Reversed. The 1 Curtis E. Pierce (Shepard & Lyon, of counsel), for appellant. James Van Kleeck and Hurdis M. Ready, for plaintiff. LONG, J. On October 18, 1886, the parties to this suit entered into a written contract which, omitting the formal parts, reads as follows: "That the said party of the first part agrees to furnish all materials and labor necessary to finish completed the work required in the erection of two two-story brick additions to the brick school-house in the First ward of West Bay City, Michigan, in accordance with the drawings and specifications thereof drawn by D. P. Clark, and which said drawings and specifications are made a part of this agreement, as much as if written herein. "It is furthermore agreed by the party of the first part that the work shall be commenced immediately, and pushed forward as rapidly as consistent with good, safe construction, and as the weather will allow; that the building shall be inclosed, and the plastering done, on or before January 1, 1887, and the entire work finished, ready for occupancy, on or before March 1, 1887, and, in case of failure to complete the work at that date, he shall pay all damages sustained by the party of the second part in consequence thereof, each and every day the work is delayed beyond the time specified through, the fault of the party of the first part, to be retained out of any moneys that may be due and unpaid on this contract. "It is mutually agreed that the work shall be under the supervision of the architect, who shall have the right to visit and inspect the work, and the power to reject any work or materials not in accordance with the drawings and specifications. And the architect shall also have the power, through the party of the second part, in case of failure of the party of the first part to rectify errors or complete the work within the contract date, to employ other parties to complete the work, at the expense of the party of the first part. "It is furthermore mutually agreed that, if the party of the second part shall at any time desire any changes in the work, their wishes shall be conceded to and executed by the party of the first part, and the work executed in the manner desired, without in any way violating or vitiating this contract; and, in case said changes shall increase the cost of the work, they shall be allowed for, at a fair and reasonable valuation; and, in case the work is diminished thereby, a fair and reasonable deduction shall be made from the contract price agreed upon between the party of the second part and the party of the first part. "It is further mutually agreed that the work shall be kept fully insured, to cover the interests of both parties as they shall appear, from the moment the roof is on until the work shall be completed and accepted, the insurance to be placed and the premiums to be paid by the party of the second part. "In Consideration of the prompt and faithful performance of the work, and terms of this agreement, the party of the second part hereby agrees to pay unto the party of the first part, or his legal representatives, the sum of three thousand nine hundred and seventy dollars: ($3,970.00), in manner following: Payments to be made, as the work progresses, to the amount of seventy-five per cent. of the amount of the architect's estimate, which shall be made fortnightly, and include only such material and labor as are upon the building site and in the work at the time said estimate is made, until the completion of the work to the satisfaction of the architect, and thirty days thereafter, at which time the twenty-five per cent. retained, together with all moneys due on the contract, shall be paid unto the party of the first part: Provided, that the work is then in good condition, and there are no claims or liens, from any source whatever, against either party, and that the drawings and specifications have all been returned to the architect." which The work was commenced under the contract in October, when the architect, finding the foundation insufficient, directed the contractor to make it broader, and for $170 additional was to be paid. The plaintiff claims that in performing this additional work he found it difficult to procure stone; and that the architect, on account of unfavorable weather, stopped and delayed him in his work, but that he prosecuted the work diligently, and that it was not delayed through any fault of his; and that he did not come within the provision of the contract which made him liable for delay, or that which authorized the architect to take possession and complete the job because it was not finished and completed within the time specified in the contract; that on March 9, 1887, the architect took possession of the work, and plaintiff was prevented from completing it. It is also claimed that when the architect took possession the work was nearly finished and that the costs of completion did not exceed $600. The work and material, it is claimed, that were put in the building up to that time by plaintiff amounted to $3,573.47, and the plaintiff had received $2,600. The suit was brought to recover the balance under the contract over and above the amount paid, and the costs of completion. Plaintiff had judgment for the sum of $675. It appears that the plaintiff, in making the estimate of the amount he had expended upon the building before the architect took possession, included therein the sum of nearly $1,000 for work and material for which he had not paid. The defendant sought to show that of this indebtedness it had paid, after it took charge of the work, about $386.57, for brick, lime, hardware, and lumber, and that the balance of plaintiff's said indebtedness still remained unpaid; that the creditors of the plaintiff were looking to the officers of the defendant and the defendant for the payment of such demands; and that a suit was then pending in the circuit court of Bay county to recover from such officers the sum of $108 of such indebtedness. The court refused to receive evidence upon this subject, and held that the defendant could not gain any advantage by reason of such payments, or from the indebtedness of the plaintiff remaining unpaid. The defendant also attempted to show the cost of completion of the work, and, in establishing the cost and |
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