Campbell v. City of Hackensack

• Decision Date: 17 May 1935
• Docket Number: No. 36.,36.
• Citation: 178 A. 794
• Parties: CAMPBELL v. CITY OF HACKENSACK.
• Court: New Jersey Supreme Court

178 A. 794

CAMPBELL

v. CITY OF HACKENSACK.

No. 36.

Court of Errors and Appeals of New Jersey.

May 17, 1935.

The CHANCELLOR, DONGES, Justice, and VAN BUSKIRK and HETFIELD, Judges, dissenting.

Appeal from Circuit Court, Bergen County.

Action by Frank Campbell against the City of Hackensack, which filed a counterclaim. Judgment for plaintiff, and defendant appeals.

Reversed, and venire de novo allowed.

Harry Lane, of Jersey City (Robert Carey, of Jersey City, and Donald M. Waesche, of Hackensack, on the brief), for appellant.

John J. Breslin, Jr., of Lyndhurst (Edward O. West and James A. Major, both of Hackensack, on the brief), for respondent.

BROGAN, Chief Justice.

The city of Hackensack, defendant below, appeals from a judgment entered against it in the Bergen county circuit court in favor of the plaintiff, for engineering services, in the sum of $21,777.12.

The complaint, in nine counts, alleges services rendered by the plaintiff, under contract, express and implied, with the defendant, municipality, on certain public improvements that were subsequently abandoned, or at least not undertaken. Three of the counts, embodying claims based upon quantum meruit, were relinquished at the trial, leaving the six which are founded on express contract between the parties.

The defendant, in answer, denied the contract asserted by the plaintiff and counterclaimed, charging plaintiff was overpaid for services rendered as to two certain public improvements done under his supervision.

The plaintiff's averment is that he was, by resolution of the governing body, appointed city engineer of Hackensack on January 1, 1925, and served continuously until January, 1932, pursuant to an express agreement that as compensation he was to receive 10 per cent. of the cost of public improvements made by the city. His service for this compensation included preparation of plans and specifications, profiles and grade maps, supervision and inspection of the work. Apparently, several contracts were completed under his direction and for these he has been paid 10 per cent. of the cost thereof for his services; indeed, as the defendant in its counterclaim averred, his compensation exceeded that percentage of the cost. That, however, is not important at the moment.

The complaint further alleges that the agreement between the parties provided that in the event that plans and specifications were prepared by the plaintiff, but the contemplated work not undertaken, he was none the less to be paid 2 1/2 per cent. of the estimated cost of such work; that from time to time he did prepare plans, specifications, maps, and the like, for proposed public improvements which were not undertaken, and, therefore, under the agreement, became entitled to 2 1/2 per cent. of the estimated or bid price of such work. The defendant denied that there was any agreement to pay the plaintiff for preliminary work done in anticipation of public improvements which were not undertaken. The official minutes of the defendant municipality contain no record of a resolution that supports the assertion of the plaintiff that he was retained as engineer on these terms. The plaintiff produced witnesses who testified that, notwithstanding the silence of the municipal minutes on the matter, such municipal action was taken and the question for determination is whether the official minutes of a municipality may be altered or, to state it more accurately, supplemented by parol evidence.

The trial court was of the opinion that parol evidence was competent to accomplish this purpose and, denying a motion for nonsuit, submitted the matter to the jury. In so doing, the court fell into reversible error.

As a general proposition, a municipality becomes bound either by formal, preliminary act authorizing a thing to be done or, in the absence of such preliminary act, by ratification.

The trial court, in support of the denial of the motion for nonsuit, relied upon Potter v. Metuchen, 108 N. J. Law, 447, 155 A. 369. This was a suit against a municipality for repairs to a fire house. The contract was neither authorized nor ratified and a recovery was denied. In that opinion, the court classified our cases respecting contracts with municipalities, and, discussing the first class of such cases, said that where there is no lack of power in the municipal corporation, or its agents, to make the contract, but the defect was in the irregular exercise of such power, a recovery may be had because one contracting with a public body, under such circumstances, is not obliged to scrutinize, at his peril, the corporate proceedings; citing Wentink v. Board of Chosen Freeholders of County of Passaic, 66 N. J. Law, 65, 48 A. 609; Tappan v. Long Branch Police Sanitary & Improvement Commission, 59 N. J. Law, 371, 35 A. 1070; Knapp v. Hoboken, 38 N. J. Law, 371; Bigelow v. Perth Amboy, 25 N. J. Law, 297. None of these cases has any bearing on the issue before us.

In the Wentink Case, a contract was awarded to the plaintiff which, on review by certiorari prosecuted by the lowest bidder, was set aside. Plaintiff sued for the sum he had expended plus a reasonable profit on the contract. The court held that under these circumstances the plaintiff could not recover a reasonable profit nor could he recover on the contract which, having been annulled in the certiorari action, had no longer any legal existence, but did allow the plaintiff to recover on quantum meruit.

The case of Tappan v. Long Branch Police Sanitary & Improvement Commission, supra, is not in point; the opinion, so far as it is at all germane, holding that when a municipal body, acting within the scope of its chartered powers, has entered into a contract for public improvements, in pursuance of proceedings regular on their face, and such contract has been performed by the other party, the fact that preliminary proceedings were irregular constitutes no legal defense to a suit upon the contract against the municipality.

To the same general effect is the holding of the court in Knapp v. Hoboken, 38 N. J. Law, 371, and there it will be noted that the determination of the court relates to a question of pleading rather than substantive law. So, too, the case of Bigelow v. City of Perth Amboy, supra, is clearly distinguishable, and is no support to the respondent's position here. In that case the plaintiff had delivered flagstone to the city and, not being paid therefor, sued to recover the value. It was proved that the contract for the stone was made by the mayor of the city, and that the stone was delivered pursuant to the contract, and that prior to the purchase the governing body had resolved that the flagstone should be provided and the mayor was appointed commissioner to carry the resolution into effect. It was further shown that a certified copy of this resolution was exhibited to the plaintiff and that the sole objection to the plaintiff's right to recover was that the pur chase of the stone was an excess of authority. The irregularity, or excess of authority urged, was that under the pertinent statutes, P. L 1844, p. 122, 3, 8; p. L. 1853, p. 171, § 10, the governing body was re quired to pass an ordinance calling upon lot owners to pave and flag their streets and sidewalks and upon their failure so to do the council might undertake the work and recover the cost thereof from the landowners. Notwithstanding this prescribed mode had no; been followed, the court held that the creditor's right to recover could not be defeated because the direction of the statute, as to the procedure...