
    CITY OF DETROIT v. GRANT.
    
    1. Municipal Corporations — Pavinu Contract — Personal Injuries — Liability op Contractor — Notice.
    Where a paving contractor, who had agreed to save the city harmless from all loss and damage occasioned by his negligence in doing the work, was sued jointly with the city impersonal injuries arising from his negligence, and procured a discontinuance as to himself, it was not necessary for the city, in order to fix his liability, to serve him with notice of the pendency of the suit and of his right and opportunity to defend.
    2. Same — Acceptance and Payment — Release.
    The acceptance of the work by the city, and payment therefor, prior to the rendition of judgment against it by reason of the negligence of the contractor, did not release the latter from his obligation to save the city harmless from loss and damage arising from his negligence.
    Error to Wayne; Donovan, J.
    Submitted January 6, 1904.
    (Docket No. 8.)
    Decided February 16, 1904.
    Debt by the city of Detroit against Archibald Grant on an indemnity bond under a paving contract. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    The defendant had a contract with plaintiff for paving a street in Detroit. The contract was dated August 1, 1894. Defendant agreed—
    “To erect and maintain a good and sufficient fence, railing, or barrier around any and all excavations necessary for said work, in such manner as to prevent accidents; to place upon such railing or fence or barrier, at twilight on each day, suitable and sufficient colored lights, and keep them burning during the night; and further to pay to, indemnify, and save the city harmless against all loss and damage which may be occasioned or arise by reason of any negligence or carelessness on his part in doing such work.”
    Defendant sublet the work. His subcontractor did not comply with this provision of the contract, and one Dooley fell into an excavation and was injured. Dooley filed a claim for damages against the city, which the city rejected. He thereupon brought suit against both the city and defendant. By stipulation between the attorney for Dooley and the attorney for Grant, that suit was. discontinued as against Grant, and left to stand as against the city. After the adjournment of the court the first day of the trial, the city served a written notice upon the defendant, notifying him—
    “That the suit of William Dooley,originally brought against the city of Detroit and yourself, is on trial; that the city will hold you liable for any judgment which may be recovered against it in said cause; and, if you have any information which may be used in the defense, I will thank you to give it to me at once. You are also requested to assist in the defense.”
    On the following day the defendant appeared, was present at the trial, and sworn as a witness. Judgment was rendered against the city for $1,500, January 3, 1898. The work was completed in November, 1894, and the board of public works so reported to the common council November 27th. A resolution was adopted in accordance therewith, accepting the pavement and directing payment. On December 4th the resolution was reconsidered, and referred to the board of public works, information having been received that a man had been injured during the progress of the work, owing to the fact that no lights had been kept at night. After further consideration, and after defendant had filed a petition for mandamus to compel the acceptance of the work, and upon the advice of the legal department of the city that the bond given by Mr. Grant was liable in case of any judgment rendered against the city, the total amount due Grant for paving was paid. The object of this suit is to recover the damages suffered by the city on account of the j udgment so rendered against it. The proofs, in addition to-what is above stated, consisted of evidence of Mr. Dooley’s injury in consequence of the failure to put up lights or barriers, the proceedings in the suit by Dooley against the city, the notice to defendant to appear, the proceedings of the common council accepting the work and ordering its payment, and the receipt thereof by Grant. The court directed a verdict for plaintiff.
    The defenses are:
    1. That the notice to defendant of the pendency of the suit was not given in time.
    2. That the notice was not such as to throw the burden of the defense upon Grant.
    3. That Grant was discharged from all liability by the payment of the balance due under his contract with the city.
    
      John J. Speed, for appellant. t
    
      Timothy E. Tarsney (John W. McGrath, of counsel), for appellee.
    
      
      Rehearing denied June 18, 1904.
    
   Grant, J.

(after stating the facts). Grant had agreed to save the city harmless from all loss and damage which the city should suffer in consequence of any negligence on his part in doing the work. Mr. Dooley sued both him and the city. By agreement between Grant and Dooley, the suit as to Grant was discontinued. He knew he was liable for any damage that might result. Instead of contesting the suit, he chose to procure its discontinuance as to him, and apparently without any notice to or consent of the city. No written notice is required in cases of this character, as is required to be given to the grantor in a warranty deed upon his covenant of warranty for breach thereof. The authorities make a difference between notices required to be given of' the pendency of suits involving title to real estate and other actions. Mason v. Kellogg, 38 Mich. 132; Hines v. Jenkins’ Estate, 64 Mich. 469 (31 N. W. 432). Having once been made á party to the suit, the defendant needed no further notice of its pendency, or of his right and opportunity to defend. It is therefore unnecessary to determine the sufficiency of the notice given. Upon this question the authorities do not seem to be agreed. See Chicago City v. Robbins, 3 Black, 418; Consolidated Machine Co. v. Bradley, 171 Mass. 127 (50 N. E. 464, 68 Am. St. Rep. 409).

The payment of defendant’s claim in full did not operate as a satisfaction of his liability under his contract with plaintiff. He was liable upon his contract and bond. The amount of the claim against the city could, not be determined until judgment was rendered. Defendant was evidently advised that the city could not avoid payment after the work was satisfactorily done, and instituted suit to enforce acceptance. In this condition of affairs the plaintiff accepted the work and paid defendant, instead of contesting suit and keeping defendant’s money tied up for a long time. This was a kindness and benefit to defendant, and did not release him from the obligation of his contract.

Judgment affirmed.

The other Justices concurred.  