W. Jersey & S. R. Co. v. Bd. of Water Com'rs of Atl. City

• Decision Date: 16 November 1914
• Citation: 86 N.J.L. 634,92 A. 369
• Parties: WEST JERSEY & S. R. CO. v. BOARD OF WATER COM'RS OF ATLANTIC CITY.
• Court: New Jersey Supreme Court

92 A. 369

86 N.J.L. 634

WEST JERSEY & S. R. CO.

v. BOARD OF WATER COM'RS OF ATLANTIC CITY.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1914.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by the West Jersey & Seashore Railroad Company against the Board of Water Commissioners of Atlantic City. From Judgment for defendant plaintiff appeals. Affirmed.

Bourgeois & Coulomb, of Atlantic City, for appellant.

Theodore W. Schimpf, of Atlantic City, for appellee.

BERGEN, J. The basis of this action is a written contract under which the plaintiff seeks to recover moneys laid out and expended, as it claims, in the performance of work described in the contract, and which it claimed was to be repaid. The plaintiff offered the contract in evidence, which the trial court overruled, and, in the absence of other competent proof in support of plaintiff's case, directed a judgment of nonsuit, from which plaintiff appeals. The contract recites that the plaintiff is the party of the first part, and the city of Atlantic City, the party of the second part, and it is signed on behalf of the party of the second part by the president and secretary of the "Board of Water Commissioners of Atlantic City." The attestation clause of the contract declares that the corporate seal of each party is thereto affixed, but the record submitted to this court fails to show that any seals were affixed. The defendant in the suit is described as "Board of Water Commissioners of Atlantic City," and the claim of the plaintiff is that such a board exists as a body corporate under the law which governs Atlantic City, and that as such it is authorized to enter into the contract declared on, and that, although the contract purports to be between the city and the plaintiff, it is in fact the contract of the defendant as a body corporate, and was therefore competent evidence against it in support of plaintiff's claim. On the other hand, the defendant insists that this board is not a body corporate with power to execute on its own behalf such an agreement, and that in making the contract, if it was authorized to do so, the members of the commission acted as an agency of the city, and therefore the writing, if it has any force, is the contract of the city, and not of the defendants as a body corporate, and, while it might be competent evidence in a suit against the city, it is not available against the defendant in this action. The contract as it reads is one with the city, signed by the officers of one of its agencies, and, if such agent was lawfully endowed to bind the city, it is the contract of the city, and, if not authorized to bind the city in that manner, then the contract never was executed by the party named therein as the party of the second part.

It is admitted that when this contract was made the city of Atlantic City was incorporated under, and subject to the provisions of, an act entitled "An act relating to, regulating and providing for the government of cities" (P. L. 1902, p. 284); and among the general powers granted the common council of all cities incorporated under that act is the raising by taxation all such sums of money each year as it shall deem expedient, "for supplying the city or the inhabitants thereof with water." The act further provides that the mayor, subject to confirmation by the city council, shall appoint a board of water commissioners to consist of three persons with defined powers, those pertinent to this issue being the entire charge and control of the waterworks system of the city, the expenditure of all moneys appropriated by the common council, or received by it from the sale of bonds issued for the...