The findings of the referee and the evidence in this case establish that the plaintiff fulfilled all the obligations imposed by the contract made with the defendants, so far as he was allowed to do so by the defendant, and was entitled to recover therefor, unless precluded by the operation of the statute of frauds.
The resolution passed by the common council of the city of Albany on the fifteenth day of January, 1866, designated the plaintiff’s newspaper as the official paper of the city, in accordance with former resolutions establishing an official organ. Soon thereafter the plaintiff filed a written acceptance of the terms of said resolution with the clerk of the common council, and thereby became entitled to the benefit thereof for the term of three years, unless the contract was void because it was not in writing, so as to take it out of the statute of frauds. The learned referee found that the resolution and acceptance constituted a contract between the
According to the referee’s finding the case presents the single question, whether there was a valid subscription to the contract by the defendant. I think that ho erred in his conclusion, and for this error there must be a new trial.
The rules applicable to contracts of this character are well settled. According to the statute the agreement, or some note or memorandum thereof, must be in writing, subscribed by the party to be charged therewith (2 R. S., 135, § 2), or by the lawful agent of such party (2 R. S., 138, § 8). It is not essential that the contract should be a single instrument. (Wright v. Weeks, 25 N. Y., 160.) And a proposition containing the terms of a contract signed by one party, and an acceptance by the other in writing, is sufficient to constitute a -complete contract. (Vassar v. Kamp., 1 Kern., 441; Haydock v. Stow, 40 N. Y., 367.) In ’the case at bar the resolution of the common council was in the nature of a proposal, signed by the clerk in the minutes, and the writing signed by the plaintiff and filed with the clerk was an acceptance of the proposition made, which made a perfect and complete contract.
In thus signing the minutes of the common council, I think that the clerk was the lawful and authorized agent of that body, and that as such his act is obligatory upon them. He is an officer authorized by law to discharge certain duties (S. L. of 1842, chap. 275, § 11), and it was entirely within the range and scope of such duties to keep the minutes of its proceedings, to enter resolutions adopted and to affix his signature to them. In this respect he was their agent and officer, vested with full power and authority for such a purpose. It was not necessary that he should have authority to
A party may authorize another to subscribe his' name to a contract as the agent of such party, without conferring power to enter into a contract.
The common council, as the representative of the corporation of the city of Albany, had authority to make such a contract, and it was the duty of the clerk, as their agent and officer, to enter the resolution by which the contract was intended to be made in the minutes which he kept, and to affix his name to this as well as to all other proceedings which that body might adopt. This being done, I am of the opinion that the entry and signing by the clerk was a subscription by the lawful agent of the common council, having ample authority for that purpose, which was quite as effectual and obligatory as if the resolution had been signed by all of the members thereof, and that the entry and subscription by the clerk in connection with the acceptance in writing of the plaintiff filed with that officer, rendered the contract complete and effectual. Where the members of a municipal corporation, lawfully convened by resolution, authorize a party to perform certain work, and such resolution is duly entered and subscribed by the proper officer who is vested with power for that purpose, and a written acceptance is filed by the party by whom the work is to be done with the officer who has thus acted as agent, it is difficult to see why there is not a valid contract which can be enforced. In the case at bar there is a proposal and acceptance, each of them signed, which together take the contract out of the statute of frauds and the evils which it was designed to remedy. Under such circumstances, where a proposition has been made and accepted, and both parties have acted, it cannot, I think, be claimed that the case is in any way analogous to one where an instrument executed by a party has not been delivered and therefore is not obligatory as a contract. (See Robinson v. Cusman, 2 Den., 153; Jackson v. Little, 12 Wend., 105.)
The question, whether the clerk was vested with power to
In the case cited, as in the case now considered, the rate of
The case cited also holds that the appointment by a city council, for a definite time, of a city officer or agent entitled to compensation for his services, if accepted by him, when no law prescribed a different time for the duration of the office or agency, constitutes a contract between him and the city, which cannot be changed by a subsequent ordinance of the city and vote of the common council without his consent.
If a contract was created by the resolution of the common council, then clearly there was no power to avoid its legitimate effect by subsequent proceedings declaring that the contract made was of no effect and by selecting other newspapers to perform the services required.
The defendant’s counsel seeks to sustain the judgment upon grounds which are directly adverse to the second and third conclusions of law of the referee and the views expressed in his opinion.
He insists that the resolutions were not binding upon the defendants, because, 1st. They were not definite, and did not of themselves nor without resort to extrinsic evidence fix the terms of the contract and the sums to be paid; and, 2d. Because the resolution provided that a contract should be made by the chamberlain with the proprietors of the paper.
The referee, in his opinion, considers that the contract to report and publish the proceedings of the board at an annual expense, not to exceed $1,000, was consummated by the designation or offer to that effect by the board and its acceptance by the plaintiff; that this was in substance a contract to do this service for that sum per annum. He also states that in this case no intervention of the chamberlain was required, and that the legal effect of the action of the board
This construction was placed upon the expense of publishing the proceedings, by the payment by the chamberlain to the plaintiff, of one quarter’s salary at the rate of $1,000 a year, thus fixing that amount.
It may also be -remarked that it is quite apparent that the object of the direction, that the chamberlain enter into a contract with the proprietor of the newspaper designated by the board, was to secure an acceptance which would bind the proprietor, and not a condition upon the performance of which the validity of the contract depended. This object was accomplished by the written acceptance, filed with the clerk, and the intervention of the chamberlain, therefore, was not required. But even if a condition existed, it was waived by the acceptance in writing of the plaintiff, filed with the clerk. Both parties agreed to this as a substitute for a contract with the chamberlain, and acted upon it accordingly.
It is further insisted that the resolution under which the plaintiff claimed was void, because the yeas and nays were not entered upon the journal as required by law. (S. L., 1848, 217, § 1.) The referee found adversely to the defendant in this respect, and I think was clearly right. The resolutions first passed created a permanent official organ, and made provision for paying the expenses attending the same.
As the amount which the plaintiff is entitled to recover may be changed by additional evidence upon another trial, this is not a case where the facts authorize the court to direct a judgment for the amount claimed by the plaintiff.
The defence interposed cannot be maintained, even on strict legal grounds; and it comports with justice as well as the law to direct that, for the error of the referee, the judgment be reversed and a new trial granted, with costs to abide the event.
The judgment in this case should be reversed and a new trial ordered because the signature of the clerk to the resolution designating the Argus as the official paper of the city was the signature of the defendant’s agent to the contract proposed by that resolution, and the one previously adopted in 1863. That, under the statute, was sufficient to constitute a compliance with its provisions. For every instrument required by any of its provisions to be subscribed by a party may be subscribed by the lawful agent of such party. (3d R, S., 5th ed., 222, § 8.)
And the fact that both parties afterward proceeded with the performance is sufficient to warrant the conclusion that the clerk was either originally empowered by the defendant to subscribe the resolution in its behalf, and in that manner complete the memorandum required by the statute, or that his act in doing so was afterward ratified by the defendant. And either would be sufficient to render the subscription by the clerk the act of the defendant. For the ratification by the principal of the unauthorized act of an agent is equivalent in its effect to an original authority to perform the act itself. (Hoyt v. Thompson's Ex'r, 19 N. Y., 208, 218, 219.)
That made it the memorandum of the defendant, and,
New trial granted.