Inhabitants of the Twp. of Wayne, in Passaic Co. v. Cahill

• Citation: 49 N.J.L. 144,6 A. 621
• Parties: INHABITANTS OF THE TOWNSHIP OF WAYNE, IN PASSAIC CO. v. CAHILL.
• Decision Date: 22 November 1886
• Court: United States State Supreme Court (New Jersey)

6 A. 621

49 N.J.L. 144

INHABITANTS OF THE TOWNSHIP OF WAYNE, IN PASSAIC CO.

v. CAHILL.

Supreme Court of New Jersey.

November 22, 1886.

(Syllabus by the Court.)

William Cahill brought an action in the Paterson district court to recover the sum of $32.40, the balance of an order for $174.40 given to him by John Ackerman, a road overseer in the township of Wayne. The complaint set out that the township was indebted to Ackerman in the sum of $174.40, and that Ackerman, being indebted to Cahill in this sum, made an order in writing to Cahill for this amount, directed to the township committee of Wayne township, and that Cahill presented said order to said defendants, who, by the said committee, accepted the said order, and promised to pay the said sum; that the defendants paid $142, leaving $32.40 unpaid. The court found, from the evidence submitted, the following facts to be proven:

(1) That the order upon which the suit was founded was given to the plaintiff by John Ackerman, overseer of one of the road-districts of Wayne township, about the time it bears date.

(2) That the plaintiff advanced to John Ackerman $174.40 in cash, for which the order was given.

(3) That, at the time he gave the order, Ackerman, as overseer, had done work, etc., on the highways in his district to the amount of said order, but that there was at that time only $142 appropriated to the district of which he was overseer, the balance being in excess of the appropriation.

(4) That the township committee of the following year, afterwards, in August, 1884, paid Ackerman the balance of his said bill.

(5) That the township committee never, by any official vote of the committee, accepted or agreed to pay to plaintiff his order or any part thereof.

(6) That the sum of $142 credited on plaintiff's order was paid by the township collector to Ackerman by check, [in evidence,] and that check was by Ackerman indorsed over to Cahill, the plaintiff, at a meeting of the township committee regularly held.

(7) That the township clerk drew the order at the request of Ackerman.

(8) That the evidence shows, and the court therefore found, that, while the township committee never by any formal vote accepted said order, yet that the township clerk and two of said committee, being aware of the existence of the order in the hands of the plaintiff, by their conduct as disclosed in the testimony, made a contract of acceptance of said order, and that, as matter of law, the inhabitants of the township are bound by such contract of acceptance, and are liable to pay the amount of the order to the plaintiff.

Judgment for plaintiff. Defendants appealed.

It was agreed by counsel that the judge's notes of the evidence, state of demand, copy of the record, and summons, with copies of the exhibits, and the foregoing statement of the findings, shall be taken as a state of the case. Judgment was entered for the plaintiff, and upon appeal to the Passaic common pleas the judgment was affirmed. This writ brings up the last judgment, and the accompanying record.

J. Griggs, for the prosecution.

C. M. Tuttle and H. M, Coddington, for the defendants.

REED, J. The right of action by Cahill rests upon an order drawn in his favor by Ackerman upon the township committee of Wayne township. By virtue of what he contends was an acceptance of such order by the township committee he claims that an obligation rests upon the inhabitants of the township to pay him the unpaid balance of this order. If the acceptance of the order by the committee could create a privity between the plaintiff and the defendants, yet I think the case tails to show the existence of any facts from which the existence of an acceptance by the committee, as a body, can be inferred. It is found by the trial judge that the township committee never, by any official vote, accepted, or agreed to pay to the plaintiff, his order, or any part thereof. The court below, however, held that the township clerk and two of the committee, being aware of the existence of the order, by their conduct, as disclosed by the testimony, made a contract of acceptance.

Now, so far as the clerk's conduct is involved, it is clear that it could in no manner bind the township. He is only the recording officer of the committee. P L. 1878, p. 376. So far as the action of the committee is shown, the only testimony that could be forced into the service of the plaintiff is his own statement, as follows: "The township committee was in session, and Mr. Vail and others of the town committee and Torbet said that they would pay the balance as soon as they got the money." Torbet was the clerk. The witness is speaking of the time when he and Ackerman were present, and the committee refused to pay...