An account was afterwards made out against the city and presented to the controller, in which the city was charged according to the contract rates, but upon a double measurement of the actual work done upon the tax sale lists, and was thus allowed and paid. The controller had full notice of all the facts. There was no evidence tending to show that the common council or any member thereof had any notice of the facts or the manner in which the account had been made out. Counsel for defendant requested the court to charge the jury:

"1st. The only ground upon which recovery can properly be sought in this case is that the money was paid by the plaintiff to the defendant under a mistake of fact.

2d. If paid under a mistake merely as to the construction of the contract, there can be no recovery.

3d. If the claim for printing was properly presented to the controller, who has the general supervision of the financial concerns of the city, and he was fully informed as to the mode of measuring for the work done, and the mode of charging therefor, and he reported the claims to the common council with his approval, and they audited and allowed the same, and the money was thereupon paid, there can be no recovery for the money thus paid, as notice to the controller was notice to the city."

These requests were refused, and under the instructions given a verdict was rendered in favor of the city.

Proof of the custom referred to would not entitle the defendant to double measurement under the contract. The price agreed upon was to be eighty-six per cent below the rates fixed by the statutes of Michigan for publication of legal notices, including tax sales. The statute does not allow double measurement, and to allow such in this case would be to give the defendant much more than the price agreed upon, and the contract also provided against the allowance of constructive charges.

Under the charter of the city of Detroit the controller had no power or authority to alter or change the contract with the defendant, or to agree for the city that a double measurement would be allowed, or to audit or allow the account at all. The power to audit and allow

accounts against the city is given to the common council. While the controller may receive, examine and report thereon, yet it is not for him, but the council, to finally pass upon and allow them.

Counsel, upon argument, conceded that it is not easy to determine when municipal corporations are bound by notice to their officers. There certainly are cases where notice to an officer may very fairly be held notice to the corporation, and there just as clearly are many cases where it would not be. The reason upon which the doctrine of notice to the agent being held notice to the principal rests, is that the agent is substituted in the place of and represents the principal in the particular transaction, and therefore while acting in such matters he takes the place of the principal, and the latter is bound by his agent's act in the light of the knowledge then possessed by the agent. If it had been the duty of the controller to examine, audit and allow the account in question, the city would have been bound by his act, in view of the facts then known to him. Farther than this, in the case of municipal corporations, the doctrine of constructive notice should not, we think, be extended. The common council of a city are its representatives; they act for and are given authority to bind the city in certain matters. Ordinarily they have but little power or control over the controller, who is an officer provided for in the charter, with certain powers therein prescribed; and to hold the city bound by knowledge which he possessed, not communicated to the council in matters like the present, would, we think, be dangerous.

Where power is given to the common council of a city to audit and allow all accounts chargeable against it, the law presumes that they will investigate all claims presented, and it is clearly their duty so to do. They cannot formally allow claims without any investigation or effort to investigate, and afterwards order an investigation and rescind their action and recover back moneys paid, because of facts existing but not known at the time

the account was allowed, and which a proper examination would then have brought to their attention. Such a doctrine would be productive of endless mischief and litigation. It would encourage the grossest carelessness in the performance of official duties, in reliance upon a future investigation to correct. The rights of third parties would not be safe under such a rule, and no one would ever know whether the allowance of his account was final or not, at least until the statute of limitations had placed the question at rest. In the absence of fraud, the body who is given the power to allow claims, when they have officially passed upon a claim, must be conclusively presumed to have had at the time full knowledge of all the facts pertaining thereto, which a proper investigation would then have disclosed.

The only doubt I have in this case is whether any error was committed as the case was tried. The theory presented was that notice to the controller was notice to the city, and this we are unable to concur in, and the several requests to charge were based upon this view of the case. The several requests to charge were each properly, I think, refused. This court has repeatedly held that justice to the trial court requires the particular objection relied upon, or the correct theory of the case, to be presented, where it is one that might not readily occur, so that it may be considered and distinctly passed upon. Howry v. Eppinger 34 Mich. 35; Ward v. Ward 37 Mich. 259, and cases cited; Turner v. People 33 Mich. 382.

The court instructed the jury to find a verdict for a certain amount, and this was excepted to and error assigned thereon. Under the facts a majority of this court is of opinion that the plaintiff was not entitled to recover, and that the direction to find for the plaintiff

was erroneous.

It follows therefore that the judgment must be reversed with costs.

The other Justices concurred.

EMILY HOWARD, ADMINISTRATRIX OF THE ESTATE OF JOSEPH
PARDEE V. JOSEPH PATRICK, ADMINISTRATOR OF

THE ESTATE OF JOHN W. PARDEE.

Exclusion of testimony-Impeachment—Admissibility of evidence-
Error must be shown by the record-Partnership.

In a litigation between two estates as to the right to property which defendant's intestate claimed as surviving partner, a question at issue was the amount of live stock kept by the decedents at a certain time. Held that evidence as to how many cattle there were before the building of a certain shed that had been put up in the life-time of plaintiff's intestate, and as to how they had been cared for the winters before and after his death, was not material.

An exception to the general rule of the competency of testimony must come fairly within the statute excluding it.

Testimony cannot be excluded as equally within the knowledge of a deceased opponent unless it comes fairly within Comp. L., § 5968; and where enough does not appear to indicate that the witness' knowledge was necessarily so obtained as to exclude it, the proper ruling would be to restrict the examination to such matters as were not within the excluding rule.

Impeaching testimony is governed by strict rules as to relevancy, and ought not to be received unless clearly competent.

P's administratrix, who was his daughter, brought suit for the estate against the estate of P's son as for property converted by the latter. The administratrix testified that she and her sisters were to have had a certain amount from their father's estate, and that settlements had been made accordingly. Evidence that before she was administratrix she had said she had no claim against the defendant estate was offered by way of impeachment. Held that it was foreign to the issue, which was the son's liability, and the fact whether or not the administratrix had any private interest left in her father's estate had no bearing on the question whether the father or son owned the property in dispute. But questions relating directly to the father's disposal of his property to his sons during his life-time, bore on the issue and were proper for impeachment.

In showing the admissions of a witness for purposes of impeachment, the time and place of the admissions should be given with certainty.

It is not necessarily important that a plaintiff should show why a certain line of proof was not introduced on a former hearing.

43 MICH.-16.

Where it was claimed in defense to a suit for converted property, that the defendant took it by right of survivorship as partner, testimony that he lacked means was immaterial and had no tendency to disprove the partnership relation, which would have to be made out.

The existence of litigation over property is enough, in the absence of a defense showing a right to it, to render immaterial any evidence that there had been no settlement.

Where the record does not show what answer a witness gave to a question that might have been proper, the appellate court cannot know that there was any injury in admitting it. There is no presumption of error.

Cross-examination of a witness as to his contribution to the expenses of the suit, bears on his interest or bias, and is admissible. Proof of the character of parties is allowed in criminal cases, but rarely as independent testimony in civil suits, though it might perhaps be proper to cross-examine a witness thereon where it would bear on his belief as to their sincerity.

In an action by one estate against another, the fact that the administrator of the latter had presented a claim against the former can have no bearing on the relations of the two intestates, though if his decedent had lived and presented the claim, it might possibly have shown inconsistency in his position.

Testimony that the widow of an intestate continued in possession of the property at the homestead, bears on the claim that the son had converted it.

Where the defense to a suit for converted property was that defendant had taken it as surviving partner, testimony as to his business capacity would not be relevant standing alone, but might not be prejudicial if connected with evidence of the extent and manner of his management and the trust reposed in him in the partnership.

The statements of a decedent as to what he had already done with his business are admissible in a suit concerning the right of another to carry it on as partner, but not as evidence of an intention to transfer it as by a verbal will.

A witness' knowledge of handwriting cannot be tested by comparing papers in the case with others not in it, as e. g. fictitious specimens.

Objections to the admission of testimony cannot be considered if the answers given do not come within them.

Error to Wayne. Submitted Jan. 14. Decided April 7.

APPEAL from an order of the Probate Court confirm