Smith v. Board of Water Commissioners

| Conn. | Mar 15, 1871

Butler, C. J.

We perceive no error in the charge of the court in this case.

1. The defendants’ first request involved the proposition that they had no power by their charter to make the contract. The contract was a lawful one in its nature, and capable of subserving the purposes for which the corporation was created, and therefore was apparently within the scope of the grant. No reason was assigned in the request why it was ultra vires, and the court might well have omitted to charge at all respecting it. But the court did charge that if necessary for the successful prosecution of the work the board of commissioners could make it, and that was perfectly correct.

The powers given to the board by the charter were divisible ■ into preliminary and contingent, and absolute. By the fourth section they were authorized to ascertain the plan, make or procure surveys, obtain estimates of probable cost, and make conditional contracts to secure rights, and report the plans, surveys, Ac. to the common council. If that body approved the plans, Ac., then by the fifth section the power of the board thereafter to do everything necessary and convenient to carry out and complete the general purpose according to the approved plan, was obviously to become absolute, except that by the eighth section two specified classes of contracts, viz: contracts for labor and contracts for materials to construct the work, if to be done by contract, must be ratified by the common council. A plan, surveys Ac., as contemplated by the fourth section, were duly submitted to and approved by the common council, and thereupon, the fifth section became operative, and the contract in question, not being a contract for labor or materials within a fair construction of the eighth section, was clearly one which, if deemed necessary in aid of the general purpose, was within the absolute power of the commissioners.

We are not able to perceive any force in the argument of the defendants that the jury were misled by the charge on this point. The request did not involve the question whether Spalding, as matter of fact, was authorized to make the contract, or any claim that in its nature it was one which the board could not legally make, but generally, whether it was within the purview of the powers conferred by the charter. Regarding the request as we think it should be regarded, if noticed at all, we think that the response of the court to it was entirely correct.

2. The instructions given in response to the second request were also correct. When the preliminary, general plan, surveys, estimates and conditional contracts contemplated by the fourth section were reported to the common council and approved, the purposes of that section were fulfilled, and the powers of the board conferred by the fifth section became, as we have said, vested and absolute. The act of 1867 changed nothing but the manner in which the two classes of contracts specified in the eighth section were to be made and ratified, and neither that act nor the provisions of the eighth section were operative in respect to contracts of this character. The proposition involved- in the second request was obviously incorrect, and the defendants have no just ground of complaint.

8. The charge in response to the third request was favorable to the defendants. Two facts are clearly shown by the motion; first, that the board by a vote appointed Spalding a committee to arrange with some party to establish a boardinghouse on the reservoir ground; and second, that Smith had no knowledge of the oral prohibitory instructions respecting the guaranteeing of boarders, which the defendants claim to have subsequently given Spalding. It has not been claimed, and cannot be claimed, that the vote was not broad enough to authorize Spalding to make the contract in question. If then Smith, acting upon the faith of the recorded vote, as presumptively he did, and without knowledge of any prohibitory instruction, as sufficiently appears, made this contract with Spalding, the defendants could not repudiate the contract without perpetrating a fraud upon Smith. The court might so have charged, or disregarded the request.

But if that were not so, and it appeared that Spalding had not sufficient authority, the charge as to ratification was unexceptionable. Notice to the board was not necessary. Spalding was its agent, and if acting as to Smith within the scope of his agency, actual or apparent, the company must be presumed to have had knowledge of his acts. Principals are always presumed to have knowledge of all the acts done or declarations made by or to their agents, when acting in relation to the subject matter of the agency, and within the scope of 'an actual or apparent authority conferred upon them. The company passed a vote conferring authority upon Spalding, and never rescinded it. Their subsequent instructions were oral, and unknown to Smith, and their agent was left with an apparent authority as broad as the vote, and they must be presumed to have had knowledge of all his acts within its apparent scope.

But assuming that actual knowledge was necessary to the implied ratification, such knowledge was conveyed to them by the letter of the plaintiff to their president. By the eleventh section of the charter it is provided that the board “ shall elect a president to be approved by tbe common council, 'who shall devote his whole time and attention to the construction, supervision, care and management of the water works, under the general supervision and advice of the commissioners” &c. It appears from this that the president was not only the ordinary organ of the board, through whom they might be legally addressed, but their general agent. Notice in writing to such an officer addressed to him officially as such, and received by him, especially of matters under his cognizance and control as general agent, is notice to the corporation, and the parties sending it may presume, and act upon the presumption until otherwise informed, that the contents have been made known to the corporators. There was no error in the charge upon that part of the third request.

Eor these reasons a new trial is not advised.

In this opinion the other judges concurred.