Wentink v. Bd. of Chosen Freeholders of Passaic County

• Decision Date: 25 February 1901
• Citation: 66 N.J.L. 65,48 A. 609
• Parties: WENTINK v. BOARD OF CHOSEN FREEHOLDERS OF PASSAIC COUNTY.
• Court: New Jersey Supreme Court

48 A. 609

66 N.J.L. 65

WENTINK

v. BOARD OF CHOSEN FREEHOLDERS OF PASSAIC COUNTY.

Supreme Court of New Jersey.

Feb. 25, 1901.

(Syllabus by the Court.)

Action by Adrian Wentink against the board of chosen freeholders of the county of Passaic. Case certified on special findings of fact. Judgment for plaintiff.

Special findings: On May 13, 1896, the Passaic county freeholders awarded a contract for the masonwork of a bridge, which it had legal power to build, to Stanley & Shire, the lowest bidders, with a proviso that the contractors should furnish a bond satisfactory to the director of the board. On June 2, 1896, the board passed a resolution which, after reciting that Stanley & Shire had failed to sign the contract awarded them or to furnish a satisfactory bond, awarded a contract for such masonwork to Adrian Wentink, the next lowest bidder, subject to the opinion of the counsel of the board on the legality of such action. The counsel being of opinion that the course adopted was legal, a formal contract was signed, and Wentink began work. On July 14, 1896, when he had reasonably expended $525 in the execution of the contract, Stanley & Shire procured and served upon Wentink and the freeholders a rule to show cause why a certiorari should not issue to review the action of June 2, 1806, which rule directed that proceedings under the Wentink contract should be stayed. A writ was in due course allowed, and under it the contract was set aside. In the meantime Wentink had reasonably expended $75 in attempting to secure materials previously furnished, but the county derived no benefit from either expenditure. Had Wentink completed his contract, his clear profit would have been $1,500. Wentink brought suit for his expenditure and his profits. The cause was tried, by consent, without a jury, before Mr. Justice Dixon at the Passaic circuit, and comes before this court on special finding of the facts above stated, with alternative conclusions, as this court shall determine the law.

Argued November term, 1900, before DEPUE, C. J., and DIXON, GUMMERE, and COLLINS, JJ.

Eugene Emley, for plaintiff.

De Witt C. Bolton, for defendant.

COLLINS, J. It is unquestionable that the recitals of the resolution awarding a contract to the plaintiff, if legally established against derelict bidders, would have fully justified the action reprobated by the court This is declared in the opinion read on the decision of the certiorari. The only reason for not upholding such action was that being quasi judicial in its nature, it could not lawfully be taken without notice to Stanley & Shire, who would be directly affected thereby. Stanley v. Passaic Co., 60 N. J. Law, 392, 38 Atl. 181. There was therefore 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 with 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. Bigelow v. City of Perth Amboy, 25 N. J. Law, 207; Knapp v. City of Hoboken, 38 N. J. Law, 371; Tappan v. Long Branch Commission, 50 N. J. Law, 371, 35 Atl. 1070; Moore v. Mayor, etc., 73 N. Y. 238.

The question in this case, then, is as to what must befall one whose contract, through no fault of his own, is, by force of law, annulled while yet unperformed. Clearly, he cannot sue on the contract for it...