OSBORNE & MARSELLIS CO. v. ESSEX CO.

(Essex Co. Circuit Court, Feb. 3, 1922).

Compensation for Road Labor Performed Under County Contract—Ultra Vires Resolution

Case of The Osborne & Marsellis Company against County of Essex.

Messrs. Edwin B. and Philip Goodell for Plaintiff.

Mr. Arthur T. Vanderbilt for Defendant.

DUNGAN, J.: This is a suit brought by Osborne & Marsellis Company against the County of Essex to recover compensation for labor performed and materials furnished in the improvement of a part of Franklin avenue, a county road in the county of Essex, prior to the allowance of a writ of certiorari to review the legality of the contract under which the work was done, which contract was set aside by the Supreme Court, and the decision of that Court was affirmed by the Court of Errors and Appeals. Chamber of Commerce v. County of Essex, 114 Atl. 426.

The case is submitted upon a statement of the case and stipulation of facts for judgment, without pleadings; the parties agreeing that the issues be submitted to this Court for decision, without trial by jury, and that “No appeal will be taken from the judgment entered on his findings.”

From the agreed statement of fact it appears that there was no irregularity on the part of Osborne & Marsellis in the bid, in the awarding of the contract, or in the execution of the contract, which was approved as to form by the county counsel, and a bond was furnished which was also approved, both in accordance with the resolution of the Board awarding the contract. It also appears that, after the adoption of the resolution awarding the contract, the plaintiff commenced the work and performed work and furnished materials, the value of which, at the unit prices fixed by the contract, amounted to $18,562.80, all of which labor and materials were performed and furnished prior to the allowance of the writ and prior to notice that application would be made for the writ, “except such work as was necessary to leave the unfinished road in condition as required by law.”

The grounds upon which the contract was set aside appear fully in the case of Chamber of Commerce v. County of Essex, 114 Atl. 426.

Two defenses to the plaintiff’s claim are urged: First, that the contract was not signed by the director of the Board of Freeholders; and, second, that the resolution constituted an ultra vires act of the Board of Freeholders and that there can be no recovery upon quantum meruit where the act is ultra vires.

1. The resolution of the Board of Freeholders relating to the awarding of the contract, which included other contracts, is as follows: “Resolved that the contracts ... be and the same are hereby awarded;” and that “the director and clerk be and they are hereby authorized and directed to execute contracts with said companies pursuant to this resolution,” the only conditions being that a proper bond be furnished and that the contract and bond be approved by the county counsel, and both contract and bond were so approved. The contract, therefore, was awarded by the resolution itself, and the formal document, approved by the county counsel, was actually signed by the clerk and the seal of the county affixed thereto by him, and the failure of the director to sign was a failure to perform a purely ministerial act, the performance of which could have been required by proper legal proceedings. Therefore, I hold that the plaintiff is not prevented from recovering on account of the failure of the director to sign the contract.

2. The subject of the contract is one which was entirely within the powers of the Board, and hence it cannot be said that the action of the Board in awarding the contract to the plaintiff was ultra vires in that respect. After the adoption of the resolution awarding the contract, and after the approval of the plaintiff’s bond and the form of the contract by the county counsel, and the affixing thereto of the signature of the clerk and the seal of the county, the plaintiff commenced the work contemplated by the contract. Grade stakes were furnished by the County Engineer’s department, and the work which was performed was under the supervision and direction of an inspector furnished by that department, and the portion of the road upon which the work was done was completed and left ready for use and is now actually in use by the public.

This situation, it seems to me, brings this case within the decision of the Supreme Court in Wentink v. Freeholders of Passaic, 37 Vroom, p. 65, in which it appeared that a contract to do the mason work of a bridge was let to Wentink, which contract the Court subsequently declared void because the firm to whom a contract for the same work had been originally awarded, but which had failed to furnish a bond, had no notice that their bid had been rejected. Wentink expended $600 in attempting to secure materials and in the execution of the contract. The Court held, that even though the county had derived no benefit from such expenditure, Wentink might recover the amount expended. The Court said: “There was no lack of power to make the contract with the plaintiff. The fatal defect was in an irregular exercise of such power. It would be too much to hold every contractor for a public body to a scrutiny at his peril of the corporate proceedings. All that he need look to is the power to make the ostensible contract.”

On the question of damages the Court said: “In the case in hand the performance of the contract was not prevented by the fault of the defendant, but by vis major. The making of the contract was, however, induced by such fault, and on its annulment the defendant should answer, as on a quantum meruit for the work done thereunder,” and that, “As to the measure of the quantum meruit for the work done the contract rate should govern.”

It is admitted that at the contract rate the work which was performed by the plaintiff would have amounted to $18,562.80. Since this case is submitted for judgment without pleadings, and since the statement of the case and the stipulation of facts make no provision for interest, the judgment of the Court will be in favor of the plaintiff and against the defendant for that sum.