reversed, and a new trial granted. The prisoner, in the mean time, will be let to bail, in the sum of $1,000, with two good and sufficient sureties, to be approved by the circuit judge.

CAMPBELL, MORSE, and LONG, JJ., concurred. CHAMPLIN, J., concurred in the result.

DONALDSON et al. v. DETROIT MUSEUM OF ART.

(Supreme Court of Michigan. October 19, 1888.) CONTRACTS-CONSTRUCTION-BUILDING CONTRACTS-COMPETITIVE DESIGNS. Defendant published a circular giving the location of the site, and a general description of the building it proposed to erect, and inviting architects to submit designs. The designs were to be passed on by a board of experts, and the author of the accepted design was to be employed to complete a full set of plans. It was provided that the examining board need make no award if it deemed none of the designs worthy. Held, that whether the examining experts should make their examination separately or as a board was within the discretion of defendant, and that defendant might, after taking the opinions of the experts, ignore their action and erect such building as it chose.

Error to circuit court, Wayne county.
James H. Brewster, for appeilants.

Elliott G. Stevenson, for appellee.

SHERWOOD, C. J. The defendant is a corporation in Detroit, whose affairs are managed by a board of eight trustees. The plaintiffs are architects, and bring suit to recover the value of their services in preparing plans and designs, to compete for certain premiums offered, as claimed by defendant, with a view to securing suitable plans for the erection of a building to be used by it as an art museum. The declaration contains a special count in assumpsit, and was accompanied with the following bill of items of the plaintiffs' demand, viz: “The following is a bill of particulars of the plaintiffs' demand in this cause, and for the recovery of which this action is brought, to-wit: (1) Services by the plaintiffs as architects from November 20, 1886, to February 1, 1887, in preparing for the defendant and at its request preliminary studies and estimates of a proposed building, namely, a section of a proposed art gallery, four hundred dollars. (2) Professional services as architects rendered by the plaintiffs from November 20, 1886, to February 1, 1887, to the defendant, at the defendant's request, in accordance with a certain circular or notice of the defendant, dated November 20, 1886, in preparing designs in accordance with the terms of said notice or circular, for the building proposed by the defendant to be erected at the proposed cost of forty thousand dollars; preparing and submitting description of the same; procuring and submitting estimate of cost from a responsible party; materials used in preparing said designs,-one per cent. of the cost of the proposed building for which said designs were prepared, viz., four hundred dollars." The defendant pleaded the general issue, and the cause was tried in the Wayne circuit before a jury, and the verdict was directed for the defendant by the circuit judge. The plaintiffs ask for a review of the case in this court.

From the record it appears the defendant's secretary prepared a circular notice, giving the location of the site for the building it proposed to erect, and a general description of the building desired, and inviting architects to submit designs for such building. The circular proposed by the secretary was approved by a majority of the trustees of the defendant corporation, and the secretary was authorized by them to send the circular to architects applying for it. The notice contains the following statements, clauses, and provisions, viz.: "Detroit Museum of Art. Notice to Architects: The trustees of the Detroit Museum of Art purpose the immediate erection of the first section of a public art gallery, and hereby invite designs for the same." The next four paragraphs of the circular describe with great particularity the lot selected v.40N.w.no.1-3

as the site for the building and the street upon which it fronts, and its size, in what direction it lies from the center of the city, and the distance of the line of houses on the adjoining property from Jefferson avenue, and stating that it is desirable to conform to the same. The circular then proceeds: "The Building: The amount of the appropriation for the building now to be erected is $40,000. It is desired to have it occupy the Jefferson avenue frontage, due regard being had to preserving proper space between it and any present or future buildings on the adjoining lot, but without unnecessary waste of ground. Approximately the building will be 90 to 100 feet long, and 40 to 50 feet wide. The building is to consist of cellar, ground floor, and second story, the latter to be lighted by skylights alone, for purposes of picture galleries. The ground floor will contain the vestibule, hall for casts and statuary, an office for the secretary, and the necessary retiring rooms. The building will be of fire-proof construction. The walls will be of Philadelphia pressed brick, with stone or terra-cotta dressings, or may be altogether of stone. Preference will be given to dignified simplicity and purity of style rather than to elaborate ornamentation and novelty of design. As the lot will ultimately be covered with buildings, the south or rear side of this structure may be absolutely plain. The Designs: The drawings to be submitted in competition will be sketches only, and will consist of the following: Plan of each floor, inch scale. One sectional drawing, inch scale. Front and one side elevation, inch sale. Ground plan of the lot suggesting future extensions, 1-16 inch scale. Drawings to be in ink; no brush work or color to be used, but stone trimmings, if any, to be shown by etching. They will be submitted by motto, and will be passed on by a competent board of experts. Every design must be accompanied by a description of the same, and also by an estimate of cost from a responsible party. The designs will be publicly exhibited, and those receiving premiums will remain the property of the mu:seum. All designs must be submitted before February 1, 1887. The examining board will not be bound to make any award, if none of the designs shall be deemed worthy. Premiums: The author of the accepted design will be employed to complete a full set of plans, with details, at the usual rate of compensation of the American Architects' Association. Two additional prizes, of $300 and $200 respectively will be awarded for the two designs deemed next highest in merit. For any additional particulars, address, COLLINS B. HUBBARD, Secretary, 48 Moffat Building, Detroit, Mich. Detroit, Mich., Nov. 20, 1886." It appears from the record that the plaintiffs in the fall of 1886 received from the defendant a circular same as the foregoing, and relying upon the propositions therein contained prepared a set of competitive plans called "Preliminary Sketches," in accordance with the terms of the circular, and submitted them to the defendant, and designated them by the motto, "Lampas Veritatis." They were accompanied with an estimate of cost, and were so submitted within the period named in the circular. It appears there were about 50 other competitors for the prizes offered. The trustees, as is shown by the record, selected four persons to act as a committee, to examine plans submitted for the proposed building, for the purpose of awarding the first, second, and third prizes. The persons thus selected, and who acted and made reports, were Gordon W. Lloyd, E. E. Myers, and Mortimer L. Smith, of Detroit, and Prof. H. S. Frieze, of Ann Arbor. It further appears from the testimony that all of these gentlemen examined all the plans submitted, to the number of fifty-three, and that of the plaintiffs was among those examined, and they considered its merits as compared with the others, and but one of the experts reported in favor of the plan submitted by the plaintiffs. The others all rejected it. The committee of experts, or board as they are termed in the circular, did not all meet together when the plans were examined, (several of them did however, examine them together;) nor was there any report made of their examination in which all united, but each made his separate re

port, and three parties presenting plans which severally received the recommendation of all or a majority of the experts as the most meritorious were awarded the prizes offered in the circular, and which were accordingly paid by the trustees. These facts are substantially undisputed. The contract to erect the building was let to James Balfour of Hamilton, Ontario, who received the first prize for his plan. The defendant insists that it substantially complied with the proposition contained in the circular, and in good faith paid over the money for prizes to those presenting the three most meritorious pians as ascertained by the board of experts. The circuit judge took the defendant's view of the case, and directed the verdict accordingly.

The plaintiffs claim that the trustees ignored the opinions of the experts, and decided the whole matter for themselves; that the defendant did not within a reasonable time after the designs of the plaintiff were submitted to it procure them to be passed upon by a competent board of experts, according to the intent and meaning of the circular; that the opinion of the experts should have been the opinion of the board, and the report should have been one made by the board, and not the several opinions of the individual experts; that the matter to be submitted to them was to be passed upon by the experts, as a board; that the experts should have consulted together, and an interchange of views should have been obtained, before any final conclusion was reached or report made, and that such is the proper construction of the circular, and what was in the minds of the trustees when the same was formulated. I do not think that either of the positions of the plaintiff's counsel can be maintained. The drawings to be placed in competition were to be passed upon by a board of experts. There was no promise contained in the circular that the trustees would accept any one of them, even if found meritorious by the trustees; but if one was accepte I the author was to be employed by the defendant to complete a full set of plans, with details, with rate of compensation therefor established by the American Architects' Association. One of them was accepted, and the next two most meritorious, as found by the experts, were paid the premiums promised. The experts were not to determine the kind or character of the building the trustees were to erect, but to present plans of such as was thought worthy to be erected by persons who had knowledge and experience in building and planning buildings. The object of the trustees was to secure the best plans, and they took this course to get before them the result of the largest experience among architects upon this subject, and they offered the prizes mentioned in the notice for the purpose of securing the greatest number from men of the largest experience, and that they might be properly advised upon the subject they promised in the circular that they would submit such plans to architects and take their judgment upon the plans presented. The number of architects, whose judgment they should so take was not mentioned; they were however to be selected by themselves, and how and in what manner the examination of the plans presented was to be made by them, or how or in what manner the architects should make their determination, was not mentioned in the circular. Whether they should make such examination separately, or together, was at the discretion of the trustees. There may have been reasons why the trustees should have wanted a separate examination and report. Certainly the competitors cannot find fault in this regard if the architects were competent, and this is conceded so far as three of them are concerned; and in relation to the fourth it was for the plaintiffs to show it, if he was not competent, under the circumstances of this case. The trustees had a right, after taking the opinion of these experts, to ignore their action and conclusions, and erect such a building as they chose. They could not, however, if the experts deemed three of the plans presented by the competitors meritorious, avoid the payment of the prizes offered. There may be some doubt whether the reports made can be said to show any three of the plans meritorious. I do not care, however, now to discuss that

point, as it is not made in the case by counsel. The view I have taken of the case renders it unnecessary to consider the question of reasonable time in submitting the plans of the competitors to the experts. If the plaintiff's plans were not regarded as meritorious by them, it is entirely immaterial when it was submitted. The experts did not act as arbitrators. They were not called upon to pass upon the rights of parties, but simply upon the comparative merits of several plans for the defendant's building. The plaintiffs had nothing to do with their appointment or with their members. The law pertaining to arbitration has no application to their mode of proceeding or to the action taken by them. Upon no view that I have been able to take of the case on the facts undisputed were the plaintiffs entitled to recover, and the circuit judge committed no error in so ruling. The judgment will be affirmed. The other justices concurred.

FLETCHER et al. v. TowNSHIP OF ALCONA.

(Supreme Court of Michigan. October 19, 1888.)

TAXATION-ASSESSMENT-STANDING TIMBER OWNED SEPARATE FROM LAND.

By Michigan tax law, 1885, (Pub. Acts No. 153,) real property includes land and appurtenances, and is to be assessed where situate, and is to be valued, described, and assessed, and may be paid or redeemed, by separate parcels. Personalty is to be assessed in the town in which the owner is an inhabitant, and "forest products where they may be. A copartnership is deemed to reside where its business is principally conducted. Standing timber upon several distinct tracts, owned separately from the land, was assessed in a gross sum, upon the roll of personal property taxes, by the town in which it was situated, but which was neither the place of business of the copartnership owning it, nor the residence of either of its members. Held, that the timber was not "forest products," and not assessable as personalty, but as realty.

Error to circuit court, Alcona county; JONATHAN B. TUTTLE, Judge. Action by George N. Fletcher, Albert Pack, and Frank W. Fletcher against the township of Alcona, to recover the amount of taxes paid under protest. Plaintiffs had judgment, and defendant brings error.

W. E. Depew, for appellant. Frank Emerick, for appellees.

LONG, J. The plaintiffs are copartners, carrying on the lumbering and saw-milling business at Alpena, under the firm name of Fletcher, Pack & Co. Prior to November 7, 1885, they had owned for a number of years lands situate in townships 28 N., of range 6 E., and 28 N., of range 7 E., in the county of Alcona, Mich., and township 29 N., of range 2 E., Montmorency county, Mich. On that date, in pursuance of previous negotiations, they deeded the lands in said townships to the firm of Snow & Huber, of Marion county, Iowa. The lands lying in Alcona county comprised 28 distinct government 40's, containing about 1,120 acres, and were wild and unoccupied. This deed reserved to Fletcher, Pack & Co. all the pine timber then standing on these lands. It was recorded in the office of the register of deeds of Alcona county, March 20, 1886, and the supervisor had constructive and actual notice of the deed and its recording, and plats and abstracts furnished him by the register of deeds at the time he made his assessment roll for 1886. Three parcels of this land were assessed by the supervisor to Fletcher, Pack & Co., and the remainder to Snow & Huber. The tax upon these three parcels amounted to $189.19. The supervisor also assessed to Fletcher, Pack & Co. the pine timber standing upon the lands deeded to Snow & Huber at a valuation of $25,280. It was assessed as personal property, and upon the part of the roll devoted entirely to the assessment of personal property, and separate from any assessment of real property. The assessments of real and personal property were made upon different parts of the roll, and were kept entirely separate. The amount of the tax levied upon this assessment was $797.61. The plaintiffs declined to

pay these two items assessed to them, viz., the sum of $189.19, assessed upon three parcels of land included in the deed to Snow & Huber; also the sum of $797.61, levied upon the pine timber reserved by them in said deed. On January 31, 1887, the treasurer of the defendant, with the tax-roll of the township and his warrant thereof attached in his possession, seized by virtue thereof a locomotive and train loaded with logs, to satisfy this among other taxes assessed against the plaintiffs for the year 1886. To procure the release of this property the plaintiffs paid this tax under protest. This action was brought to recover from the township the amount of taxes so paid. On the trial the right of the plaintiffs to recover the sum assessed upon the three parcels deeded to Snow & Huber, upon the ground they were not owned or occupied by the plaintiffs at the time of the assessment, was not controverted by counsel of defendant, and it is not controverted here. As to the taxes levied upon the assessment of $25,280 upon the pine timber reserved by plaintiffs, as personal property, the ground of plaintiffs' claim to recover taken upon the trial was that that sum was a fraudulent overvaluation of this timber, and considerable evidence was taken tending to show this fact. It was shown that for a number of years prior to 1886, and while Fletcher, Pack & Co. owned these lands, and also the same pine timber standing thereon, that the highest aggregate assessment of all these lands was about $11,000. But after this deed was made the land itself was assessed as real estate, and the pine timber standing thereon was assessed to the amount of $25,280 as personalty. This part of the case becomes entirely unimportant under the ruling of the court upon any claim made by the plaintiffs in relation to the assessment of this timber. Plaintiffs' claim was that, as personalty, this timber was not assessable in Alcona township at all. It is undisputed that plaintiffs were copartners carrying on a large lumbering and saw-milling business at Alpena; that its business was principally carried on there; that they had their head-quarters there; and that two of the partners resided there, the other residing in Detroit. It was also shown and was undisputed that at the time the assessment was made for the year in question, to-wit, on the second Monday of April, this firm did not hire or occupy any store, mill, office, or any of the places of business or use in this township, required by section 11 of the tax law of 1885, to legalize the assessment of personal property in the township other than where the person resides, or a firm has its principal place of business. Defendant's counsel, admitting these facts, and the legal conclusion therefrom that, under the tax law, this timber could not be assessed to plaintiffs under the general rule in reference to personal property, claim that this timber was a forest product, and comes within the fourth subdivision of section 11 of said act, and was assessed properly in said township of Alcona. The court held this standing timber was not a forest product, and further held, the facts being undisputed, that plaintiffs were also entitled to recover the amount of this tax. Judginent and verdict passed for the plaintiffs for the amount of the tax, and the defendant brings the case to this court on writ of error.

The reservation contained in the deed from Fletcher, Pack & Co. to Snow & Huber is as follows: "Reserving all pine and hemlock timber and the right of way to remove the same, and the exclusive use of all landings on streams, flowage for dams, timber for building log road, camps, skidways, and logging railroad, across said land." The tax law of 1885 (act No. 153, Pub. Acts 1885) provides: "Section 1. That all property within the jurisdiction of this state, and not expressly exempt, shall be subject to taxation. Sec. 2. For the purposes of taxation real property shall include all lands within the state, and all buildings and fixtures thereon and appurtenances thereto, except in cases otherwise expressly provided by law. Personal property shall include all goods and chattels within the state, all ships, boats," etc. Section 5 provides: "A copartnership shall be deemed to reside in the township where its business is principally carried on. And that copartnership shall be treated