Appeal, No. 156 | Pa. Super. Ct. | Apr 20, 1908
Opinion by
The trial in the court below resulted in a verdict for plaintiffs, upon which, on a motion for judgment n. o. v., judgment was entered.
The only error assigned is the refusal of the court to enter
It is practically undisputed that the plaintiffs, who were architects, were summoned in some way to the commissioners’ office of the county. The Commissioners were all present. It was their regular meeting day. In consequence of what transpired there, the plaintiffs prepared plans and specifications for a heat and power plant, from which the county buildings were intended to be heated, lighted and ventilated. These plans were submitted to the commissioners and retained by them. At the first meeting, the plaintiffs claim that they suggested a preliminary plan and that two of the commissioners gave specific directions for them to proceed with its preparation. The other commissioner, although present, said nothing. A week thereafter, at a second regular meeting of the board of commissioners, a preliminary plan was submitted, and as claimed by the plaintiffs, the same two commissioners who had directed the preliminary plan to be prepared, authorized the preparation, of a detailed plan and specifications which could be submitted to bidders and that, in pursuance of their directions, the plans were so prepared after careful examination and measurements.
It is not denied, as we understand* the defendant’s testimony, that the question of the erection of such a plant as was proposed had been discussed by them and that the plaintiffs were summoned for the purpose of giving expert advice in regard thereto. One of the plaintiffs and a disinterested witness in their employ testified distinctly in the main as outlined above. If their testimony was believed, the jury had a basis of fact upon which to found their verdict.
Their testimony, in essential particulars, is denied by the commissioners. It is to be remarked that the commissioner, who seemed to act as the principal spokesman of the board, was not called by the defendant as a witness. One of the other commissioners, Shimer, who was called, had a very indistinct recollection of what did occur and was contradictory in his answers to the question as to whether or not he had been present
The commissioner first mentioned was called by the plaintiffs on rebuttal. His recollection was different from that of the other two. His testimony also differed from that of the plaintiffs in some important particulars, denying that detailed plans and specifications had been regularly ordered by the commissioners. In the cross-examination 'of this witness, called by the plaintiffs, he testified: “Q. Now, but isn’t it a fact that whatever directions were given as to preliminary plans or otherwise, you yourself told these people to do.it? A. W,e all did; we all knew what was going on, Guth and Shimer; too. . Q. Had you told them what was going on? A. Most undoubtedly I told thém, for that they asked me and they knew it. Q. You never told them to make plans and specifications, but only a rough estimate? A. Yes, that is all, only a rough estimate.” ,
It will thus be seen that the case was peculiarly one for a jury, provided upon a consideration of the whole case, there was anything to be submitted for its finding. This raises the question as to whether or not there had been such deliberation on the part of the commissioners and such an employment by the plaintiffs as authorized the furnishing of the plans.and specifications, for which a recovery is here sought.
By the nineteenth section of the Act of April 15,1834, P. L.
There is testimony here from which the jury could have found that all of the commissioners were present, assenting to the arrangement to which the plaintiff’s witnesses testified, and that two of them gave express directions in regard to the preparation of the plans and specifications. The commissioners, as appears from all the testimony, had consulted together in regard to the desirability of the establishment of a heating and lighting plant and had agreed that it was desirable, if the cost was not too great. . It became necessary, in order to ascertain the cost, to have at least a plan and estimate prepared. It is not difficult, even from the testimony of the commissioners, themselves, to determine that such a-plan and estimate were ordered by them, which were furnished by the plaintiffs.
In Jefferson County v. Slagle, 66 Pa. 202" court="Pa." date_filed="1870-10-20" href="https://app.midpage.ai/document/jefferson-county-v-slagle-6233937?utm_source=webapp" opinion_id="6233937">66 Pa. 202, it was held that “A contract made by county commissioners, within the scope of their authority, is binding on the county, although not made at their office,” and that “Two commissioners have power to make a contract, if made in their capacity as commissioners.”
Assuming that Guth, one of the commissioners, did not give specific directions nor assent to those which were given by the other two commissioners, as testified to by the plaintiffs, we think the case necessarily went to the jury upon all the testimony.
No entry of the transaction seems to have been made in the minutes kept by the clerk of the commissioners. It would have been more satisfactory, if such a minute had been made. The plaintiffs, however, 'had no control over this and it would be a dangerous doctrine to establish that, because the commissioners, for any reason, neglected to place upon their minutes the record of a contract which had been made by them, that no such contract could, therefore, be established by other proof.
Upon a consideration of the whole case, we think the court properly submitted it to the jury. There is no complaint as to
Judgment affirmed.