[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 577 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 579 The facts found by the learned trial court fully sustain the judgment in this action.
The fourth finding that "the committee on public buildings set apart and ordered to be fitted up in the city building rooms for the use of said officers," was not excepted to, and is conclusive upon this court in our consideration of the case. We need not inquire, therefore, whether it had evidence to support it or not.
The power delegated to the committee by the resolution of the common council was "to set apart and fit up rooms for the use of city officers who had been left without any office room by reason of the destruction of the city hall by fire."
The officers who had thus been deprived of their offices were specified in the fourth finding to which, as already stated, there is no exception.
It thus appears without dispute that the committee did the very thing it was empowered to do, unless some distinction is to be made between the fact that the committee was by the resolution directed to "fit up the room," and the finding that it "ordered the room to be fitted up."
But the learned counsel for the appellant makes no such distinction. His claim is that the committee never met or acted together, and that the plaintiff sold the goods on the order of Zimmerman and Gorman, and that their action was individual and not by authority of the committee. But we must accept the finding of the trial court, which is that the committee gave the order. This assumes joint action. *Page 580
The question of the defendant's liability becomes, therefore, one of corporate power. We are not referred to any provision of the charter of the city which limits the power to make such purchases as are involved in the plaintiff's claim or any which provides that such contracts shall be made in a particular manner.
The section which declares it unlawful for any member or members of the common council, whether a committee or otherwise, to make any disbursement of corporate moneys or incur any expense in behalf of the city, unless previously ordered by the common council, etc., was a limitation upon the action of committees and individual aldermen. It did not curtail or affect the power of the common council. (Albany City Nat.Bank v. City of Albany, 92 N.Y. 363.)
But the appellant's claim is that authority given to the committee was one calling for the exercise of judgment and discretion and could not be delegated.
The principle of law is well established that public powers or trusts devolved by the charter upon the common council are to be exercised when and in such manner as it shall determine and cannot be delegated.
In other words the governing body of the city cannot confer upon one of its committees the power to perform acts which relate to the government of the city. But that principle has no application to this case.
The leasing or furnishing of a room for the transaction of the city's affairs is a mere business act, and in its power to perform it the city differs in no respect from an ordinary business corporation or an individual, and it may delegate the power to perform such acts to agents or committees.
The power given to the committee to "fit up the rooms," conferred authority to do whatever was necessary to that end.
It would doubtless tend generally to an economical administration of affairs if the articles required should be specifically enumerated by the council or a limit put to the expenditure to be made. But the argument that such general authority may lead to extravagance and a waste of the municipal funds *Page 581 has no foundation in this particular case, as the committee appear to have kept well within the necessities of the occasion and no complaint is made that the carpets and desks sold by the plaintiff were not proper within the requirements of the resolution and fully worth the prices charged.
It would hardly be practicable for all or a majority of the members of a common council to attend to the details of such purchases, nor can it be said to be unlawful for the committee to permit one or two of its members to make selection of the particular article of furniture required. And when the work and material have been actually ordered by the common council and the city has had the full benefit of them without objection from any of its officers, very slight evidence is sufficient to support a finding that any irregularities in the committee's action have been waived and their general acts ratified.
Assuming then that in this case the committee's action in permitting one of their number to order and select the goods sold by the plaintiff was an irregularity, the evidence is ample to sustain the finding of the court that the acts pursuant to which the plaintiff's claim was contracted were ratified and confirmed.
But upon another principle of law, the defendant is liable.
That corporations may be bound upon implied contracts made by its agents and to be deduced from corporate acts without a vote of the governing body is now well established.
Within the practical application of that rule, such a contract must be within the scope of the corporate powers and must not be one which the charter or law governing the corporation requires should be made in a particular way or manner. (Dillon on Municipal Corp. §§ 383, 384, and cases cited in note; 2 Kent's Com. 291; Bank of Columbia v. Patterson, 7 Cranch. 299; Peterson v. Mayor, etc., 17 N.Y. 449; Harlem Gas Light Co. v. Mayor, etc., 3 Robt. 124; affd. 33 N.Y. 309; Nelson v. Mayor, etc.,63 N.Y. 535; McCloskey v. Mayor, etc., 7 Hun, 472.)
When the act done is ultra vires, it is void and there can be no ratification, and when the mode of contracting is limited *Page 582 and provided for by statute, an implied contract cannot be raised. But a corporation, like an individual, is liable upon a quantum meruit when it has enjoyed the benefit of the work performed or goods purchased, when no statute forbids or limits its power to make a contract therefor.
None of the cases cited by the appellant hold to the contrary. Brady v. Mayor, etc. (20 N.Y. 312), Donavan v. Mayor, etc. (33 id. 291),McDonald v. Mayor, etc. (68 id. 23), Parr v. Greenbush (72 id. 463),Smith v. City of Newburgh (77 id. 130), Dickinson v. Poughkeepsie ( 75 id. 65), Lyddy v. L.I. City (104 id. 218), were all cases where the contracts sought to be enforced were either ultra vires or were executed in express violation of law.
Here the power to make a contract for the work done existed, and the city, having had the benefit of such work, is liable for its value.
The fact that the order to the plaintiff was given by one of the committee, or even by the janitor, as it appears to have been done in some instances, affords no defense to the claim.
If the council had ordered the committee to purchase coal to heat the public buildings, it would not be seriously claimed, after the coal had been delivered and burned, that the fact that the committee permitted the janitor to give the order to the merchant, that the city were relieved from paying. Such matters do not belong to the governmental department of the city, and it can afford no defense that the power to purchase was delegated to an inferior agent.
The judgment should be affirmed, with costs.
All concur, VANN, J., in result.
Judgment affirmed. *Page 583