82 N.J.L. 82 | N.J. | 1911
The opinion of the court was delivered by
The plaintiff, a married woman, carrying on business in her own name, sold and delivered to the county of Atlantic lumber for the reconstruction and repair of certain bridges. The contract on behal f of the county was made by the husband of the plaintiff, who was then one of the members of the hoard of chosen freeholders of the county of Atlantic, and the price agreed upon was $45 per thousand feet. It is not disputed that the quantity of lumber claimed to have been delivered was in fact delivered, it having been inspected and measured by the bridge committee of the board of chosen freeholders, and the only objection to payment when the bills were presented related to the price, the defendant claiming that the market price of such lumber was $40 per thousand feet, and the bridge committee, after it had made its inspection of the lumber, recommended that $5 be deducted for each thousand feet of lumber. The defendant having refused to pay at the rate charged by the plaintiff, she brought her suit and recovered the judgment from which this appeal was taken.
The defendant assigns several reasons for reversal, the principal one being that the chosen freeholder who ordered the lumber was not authorized either by the statute or the board of chosen freeholders to make the contract. It is not claimed that the husband of the plaintiff, as freeholder, had any express authority from the hoard to purchase this lumber, and as the evidence shows that he did not observe the statute in making the repairs, which it permits to be made without express authority from the board, it was a purchase of materials for the use of the county by its unauthorized agent. Two classes of purchases were made, one for the repair of bridges exceeding in cost $50, but less than $200, and the other where the cost was less than $50. Section 2 of the act concerning bridges (Gen. Stat., p. 305) authorizes the chosen freeholder of the township and the freeholders of two adjacent townships to make such repairs where the cost falls be
Under section 3 of tire Bridge act power to make repairs at a cost not exceeding $50 without the authority of the board of chosen freeholders, is given to the freeholder and the overseer of the highways of the township where the bridge is located. The language used in conferring the power being: “It may be lawful for the overseer of tire highways within whose limits and division the same may be and the two chosen freeholders of said township, or a major part of them, to direct such bridge to be built, rebuilt or replaced and to superintend or contract for the doing thereof,” and it may be perhaps questionable whether when the legislature abolishes the office whose occupant- is empowered to exercise a power jointly with another, the latter continues to be endowed with the power so jointly conferred, but it is not necessary to solve this question in the present ease, for some of this lumber was purchased for repairs exceeding in cost $50 without the express sanction of the board or the concurrent action of the freeholders of the “two next adjacent townships” and therefore unauthorized. As the chosen freeholder in the present case did not observe the statute, in the purchase of plaintiff’s lumber, where the expense of the repairs exceeded $50, his act was beyond his statutory authority, and would not bind the board unless it as-
The board not having directed the purchase, and therefore not chargeable with an express promise, the only question is, did it subsequently so deal with the material as to raise an implied promise to pay for it? In Hackettstown v. Swackhamer, 8 Vroom 191, the municipality was without power to borrow money, but its treasurer having borrowed funds gave the promissory note of the corporation for the sum borrowed, which was used for the benefit of the municipality. This court held that there could be no express promise to repay, because the municipality was without the power to borrow money, and therefore such promise would be illegal, and the law would raise no implied promise because “the corporation has not the competency tn make the promise thus sought to be implied.”
In Cory v. Freeholders of Somerset, 15 Vroom 445, 455, the court said: “The rule of law is, that it is only when the corporation has the right to enter into the given contract that it can legalize it after it has been performed under the authority of its unauthorized agents,” and in the same case it was held that notwithstanding the Bridge act which authorized the resident member to repair and construct bridges not exceeding in cost $50 the board of freeholders have the supervision of all bridges, whatever the cost may be, and have competent authority to validate payments for work of this description done in good faith, the full benefit of which has enured to the public, even if there was a defect in the authority under which such expense had been incurred, Chief Justice Beasley saying: “The opposite view would often work inconvenience and injustice, óf which this case, in the aspect of it now under consideration, presents a conspicuous example, for if the defendant has done the work in question at fair prices, in the belief that it had been legally ordered, and has been paid for it, and such payment has the sanction of the board of freeholders, still, according to the construction acted on at the trial, he
In the ease now under consideration the board of freeholders undoubtedly had the right.’to purchase this material, for it has supervision of all bridges and of their reconstruc-. tion and repair, and if this material had been ordered by the board, there could he no doubt of its liability to pay for it.
In the case of Car Spring Co. v. Jersey City, 35 Vroom 544, there were two classes of bills against the city for materials furnished, neither of which was ordered by the board of street and water commissioners, the proper authority, but by their agents. As to one class the board adopted the purchase and ordered its payment which act was held to be a ratification, and the city made liable thereby. The other class was held not recoverable, because the board of street and water commissioners had no knowledge of the purchase, receipt or use of the goods. The Chancellor, who delivered the opinion of the Court of Errors and Appeals, said that it was an open question whether, if the board which had the power to hind the city had known of the purchase, acceptance and use of the goods, an implied promise would have arisen under the doctrine laid down in Hackettstown v. Swackhamer, supra, and he expressed his opinion that it would not, but this expression was obiter, as the solution of that question was not required in the determination o£ the case under review.
In Jersey City Supply Co. v. Jersey City, 42 Vroom 631, it appeared that the city had no power to contract except through the board of fire commissioners, and as that board neither ordered nor had knowledge of the purchase, saving a void resolution approving payment, it was- held that no express promise was shown, and that without knowledge of the purchase or lawful action by the board approving it, no implied promise arose.
The rule which these eases seem to establish is that a contract entered into on behalf of a municipality by its unau
The appellant raises other objections which require consideration. It urges that the action was prematurely brought because the bridge committee, to which the bills for the lumber were referred, had not had time to investigate and report to the board the actual quantity of lumber used. The evidence shows that this committee had measured the quantity of lumber furnished by the plaintiff for the use of the county, but was unwilling to recommend payment at the price claimed by the plaintiff, in which recommendation the board apparently concurred, and it sufficiently appears that the committee did not intend to report the bills for payment unless a deduction of $5 per thousand feet was agreed to, in fact, that appears to have been the only matter in dispute, and we therefore think there is no force in this objection. The defendant had accepted the lumber and used it for the benefit of the county, but refused to pay more than $40 per thousand feet, while plaintiff demanded $45.
The next point urged by the appellant is that rule number 10 of the board of chosen freeholders, which permits a single freeholder to make repairs to bridges in their respective districts to the extent of $50 during the interval of the stated meetings of the board, and under like conditions to' make repairs to the extent of $100, “with the approval of one member of the bridge committee or the freeholder of the adjoining district,” amounts to the delegation by the board of its discretionary power which is not permissible. It is not necessary to determine this question for the reason that the rule is a nullity, because it undertakes to confer a power not given by the statute. Section 2 of the act concerning bridges passed in 1846, authorizes the construction and repair of bridges cost
The next point relied upon by the appellant is that it is contrary to public policy to allow a husband, as a member of the hoard of freeholders, to contract with his wife for materials to be furnished to the county, because by virtue of a supplement to “An act for the punishment of crimes,” approved May 7th, 1907 (Pamph. L., p. 292), it is made a misdemeanor for any member of the board of freeholders to be directly or indirectly concerned in any agreement or contract for the construction of any bridge or other improvement made at the expense of the public, or to be directly or indirectly inlerested in furnishing any goods, supplies or property of any kind to the county. The trial court found that there was no evidence to show that the husband was the agent of the wife in furnishing the lumber, but, on the contrary, that he was the agent of the county, and therefore not interested in the sale or purchase. We are of opinion that the relations existing between a man and his wife are of such a nature as to raise a serious question whether he was not a freeholder indirectly concerned in the furnishing of material t» be paid for by the public, but it is not necessary to consider this, for the law appealed to does not avoid the contract, it simply renders the member of the hoard, who makes a contract forbidden by the statute, liable to prosecution for a misdemeanor, and such action by a freeholder would not deprive the wife of her right of recovery if the board of freeholders should afterwards assent to the use of the material or should accept it and appropriate it to the proper public use.
Eor this latter reason the judgment will have to be reversed and a new trial ordered.