F. C. Austin Manufacturing Co. v. Ayr Township

24 Pa. Super. 91 | Pa. Super. Ct. | 1903

Opinion by

Henderson, J.,

The questions now presented in this case are not materially different from those considered and determined in the former appeal, Austin Mfg. Co. v. Ayr Township, 17 Pa. Superior Ct. 419. The power and duties of the township supervisors were there sufficiently discussed, and that discussion need not now be elaborated or repeated. We are only to consider whether there is evidence for the plaintiff which should have been submitted to the jury. The learned court below attached undue importance to the order for the road machine signed by the supervisors. Conceding that that order was not binding on the township because of the fact that it was signed by each of the supervisors in the absence of the other without consultation, it does not at all follow that the township is not liable in this action on the facts shown by the plaintiff’s evidence. The order delivered to the agent of the Austin Company was doubtless the inducement to the company to send the machine to the township for inspection and trial, but it was not necessary that any order should have been given. It.was clearly within the power of the supervisors to buy the machine after it was delivered in the township, and the important part of the plaintiff’s testimony relates to that which occurred after the machine was received for trial. Both of the supervisors were present by appointment on the day when the trial of the machine was made, and had sufficient opportunity to observe its construction and mode of operation. The subject of the purchase of the road machine was not new to them at that time. Each of them had given more or less attention to it for weeks preceding, and, according to the testimony of one of them, they had discussed it together between the time when the order was given and the machine was received. For an hour or more they observed the machine in operation, and were of the opinion that it came up to the representations of the agent as to efficiency, and that it would be to the advantage of the township to buy it. After conferring together, they gave the obligations sued upon, accepted the machine and took charge of it. The acceptance of the machine and the delivery of the obligations by the supervisors raises a presumption of deliberation, consultation and judgment, and there is direct evidence by the supervisors that, after seeing the machine in operation, they had some talk about it and concluded to take it. It is not necessary that a protracted discussion should be engaged in as evidence of deliberation. It could hardly be expected that after the lapse of so many years the supervisors could repeat at length the conversation they had at the time, but that given by them is evidence of such deliberation and exercise of judgment as should take the case to the jury. There is clear evidence of the concurrence of the minds of the two supervisors upon the advisability of purchasing the machine, as to the agreement to purchase, as to the acceptance and retention of it, and the delivery of the obligations of the township in payment therefor. Iii the absence of other competent evidence than that brought up on the appeal, the jury would have been justifiable in finding a verdict for the plaintiff. We think therefore the learned court below was in error in not submitting the case to the jury.

As it goes back for another trial, it is proper to say that evidence of protests or objections of the taxpayers or by-standers present at the trial of the machine against its purchase are not relevant. The law casts upon the supervisors the duty, discretion and responsibility of action in such matters, and the legality of what they do is not affected by the opinions of those who have no such responsibility.

The assignments of error are sustained; the judgment is reversed, and a venire facias de novo is awarded.