accept the same in behalf of the city in good faith, and for the reason that the same was not suited to the needs of the city, and was of no practical utility as a fire-alarm. He also found that the agreement above set out was the only agreement between the parties in respect to the premises. As a conclusion of law he found that the plaintiff had not made out by its proofs such a case as would entitle it to a judgment in any amount whatever against the defendant. The plaintiff failed to show a substantial compliance with that portion of the contract which stipulated that the tone of the bell should be second A below middle C on the organ. We do not think that the defendant waived this provision of the agreement by the fact that bells of 3,000 pounds' weight are not manufactured having such tone, and that Mr. Comstock, when notified of that fact, told plaintiff to do the best he could with regard to the tone of the bell. The fact is not found that Mr. Comstock had any authority to make any changes in the contract, and the records of the proceedings show that when the committee reported the proposition made by plaintiff to the common council they were discharged. Counsel for plaintiff make no claim in this case under the common counts in assumpsit. They claim to recover upon the sole ground that the difference in the tone of the bell was waived, and that in all other respects plaintiff has fully performed its contract, and the defendant has refused to accept, and pay the contract price. While admitting that the rights of the parties depend upon the construction of the contract, they insist that the defendant did not have the arbitrary power to refuse to accept the work done, and materials furnished, notwithstanding the plaintiff had performed in every particular; that, if the plaintiff performed the agreement on its part, the defendant was bound to accept and pay. They admit that the defendant had the right to test the property for the purpose of ascertaining whether it was according to contract, and if it was it was bound to be satisfied, and was legally liable to pay the contract price. The particular clauses of the contract to be construed read as follows: "The company agrees to do all of the above work and complete the contract in about 30 days from the date of signing the contract, and your honorable body shall thoroughly test the working of the same within 30 days after the completion of said work, and, if found to be satisfactory, and according to contract, accept and pay for same. وو This language is contained in the written proposition made by the plaintiff to defendant. The written contract executed by the parties contained this clause, namely: "Said first party to have 30 days after contract is completed to test bell and working apparatus, and in case same is satisfactory, as per contract, then they agree to pay," etc. The proposition of the plaintiff was attached to and made a part of the contract between the parties, and consequently these clauses must be construed together. The language employed by the plaintiff in making the proposition clearly indicates that the council was obliged to accept unless the work was done according to contract, and was also satisfactory, and this is a reasonable construction of the contract. The council were acting in a representative capacity, and in the interest of the public. The contract involved a change in their system, and was to them in the nature of an experiment. What they required was efficiency in the system which they were about to adopt, which, while it might operate well under a paid fire department, should be adapted to the workings of a volunteer fire department, the members of which are in general following their usual avocations, and volunteer their services upon an alarm of fire. It would appear that the alarm should be such that the members would hear it while about their business in their shops and counting rooms, as well as when in their houses at night. The council had a right, not only to test the workings. The judgment of the circuit court is affirmed. STELLA G. LEATON V. JOSEPH MURPHY AND DENNIS The MURPHY. Township treasurer-Levy and sale under warrant. same rule must be applied to a sale by a town treasurer to satisfy a tax as to judicial sales. So held, where a treasurer seized two horses, not a matched team, and either of which animals was worth more than the amount of the tax, and sold them together, without offering them for sale separately. Error to Isabella. (Hart, J.) Argued October 23, 1889. Decided November 15, 1889. Replevin. Plaintiff brings error. Reversed. The facts are stated in the opinion. F. C. Wallington, for appellant. E. D. Wheaton and W. S. Walker, for defendants, contended: 1. It is the duty of the officer to sell the property in such lots or parcels as to command the highest price. He has a large discretion, and is not required to sell each particular article separately; citing Perkins v. Spaulding, 2 Mich. 161. LONG, J. Replevin was brought to recover possession of two horses, which had been sold by the treasurer of the township of Deerfield, Isabella county, by virtue of a warrant annexed to the tax roll of that township for the year 1887. The proceedings under the writ of replevin are not questioned, and whatever irregularities may have existed in the tax roll need not be discussed. It appears that one George Murphy was treasurer of the township during the year 1887, and, having the tax roll in his possession, with the warrant annexed, went to the premises where these horses were kept, levied upon and advertised them for sale for the payment of a tax assessed against Brown & Leaton for that year. The horses were kept at the farm of Brown & Leaton until the day of sale. On that day the treasurer, Mr. George Murphy, accompanied by his brother, Joseph Murphy, one of the defendants in this case, went to the place of sale. It appears that no other bidders were present, except Joseph Murphy, though the treasurer says he stopped along the way, and attempted to get other bidders to go out. It is also claimed that a man by the name of Harrington was there for a time, but that the tenant of Brown & Leaton there on the farm drove him away. Mr. Murphy, the treasurer, finally offered the two horses for sale. together, and his brother, Joseph, bid them in for the amount of the tax. On the trial of the case plaintiff's counsel requested the court to charge the jury "That it was the duty of the treasurer to have sold the horses separately, and his failure to do so makes the sale void, and plaintiff is entitled to a verdict." This instruction the court refused. The jury returned a verdict in favor of defendants. We think the court was in error. The treasurer had no right to offer and sell the horses together. It is not contended that they were a matched team, or that it was better for the interests of the parties to sell them together; or that they would bring a greater price in that manner. of sale. Neither is any showing made that one of the horses would not have brought the amount of the tax. On the other hand, it appears from the appraisal, made under the writ of replevin, that either one of the horses. was worth more than the amount of the tax demanded. The treasurer did not offer them separately, but gives as a reason that his brother, who was the only bidder there, would not bid upon them separately. It appears, however, that the treasurer and his brother had talked this matter over before reaching the place of sale, and Joseph stated he would buy the team for the tax, but he did not have sufficient money to do so. The treasurer, therefore, loaned him the money to make the purchase, or a portion of it. Just what took place there on that day-the offering of |
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