Acme Road Machinery Co. v. Town of Bridgewater

Spring, J.: Section 6 of the Highway Law (Laws of 1890, chap. 568) was amended by- chapter 155 of the Laws of Í898 as follows: “The commissioner, or commissioners of highways may also, with the approval of the town board, purchase and hold for the. use Of the town at large, one or more road machines and pay for the same with inonéy appropriated and set apart for highway purposes.” , In 1902 Milton Tripp was" the commissioner of highways of the defendant. In" March of that year the said commissioner purchased of the plaintiff, a manufacturing corporation, a Fort'Wayne road machine for $225, subject to the approval of the town board of said iown. The board early in April approved of this purchase and" so advised the plaintiff. About the twentieth of April the plaintiff pursuant to this approved, contract of sale delivered said machine to the defendant at the place agreed upon, informing the said commissioner, who declined to pay for the same." At the time of the making of said agreement and also at the time of the delivery of said machine the commissioner had more than sufficient moneys. in "his hands “ set apart for highway purposes ” to pay for said machine. [599] Another machine, shortly after, was purchased on behalf of said town for $200 and paid for by said commissioner out of the town funds. Upon the refusal of the commissioner to pay for said first-mentioned machine this action was commenced, and one of the ■defenses interposed and the chief one litigated is that no contract in fact was made by said commissioner of highways or approved . by the town board. This question of fact' was determined in favor of the plaintiff, and the evidence supports the findings of - the referee. ‘ . In the record before us, therefore, we have a valid agreement to purchase made by the commissioner of highways of - the defendant with the plaintiff, its approval by the town board, fortified by the further fact that the highway commissioner had ample funds in his hands with which to meet the purchase made. The first objection is that the act contemplates a cash payment, "not a sale upon credit; The act implies a contract of purchase foi it is to be approved by the town board. That body does not pass a general resolution permitting the commissioner to purchase a road machine. The commissioner has already acted and reports to the town board the agreement he has made. If sanctioned by the board the agreement becomes a valid contract of sale. .When the machine is delivered payment is due and the sale is not upon credit, and there is no extension of time simply because the defendant has defaulted in payment. If there is a refusal to pay certainly the seller has a remedy to enforce his contract. It would be an anomalous condition if the statute permitted a valid agreement of purchase and sale •of a road machine to be made but prevented the recovery of the purchase price upon delivery because the commissioner declines to pay. In the present case it was delivered as agreed and payment was demanded, and more than that the plaintiff could not do. It was not obliged to return the machine to its manufactory, cancel its ■agreement and abaft don its claim. But it is urged that the town is not liable. The commissioner is authorized to make the purchase and the machine belongs to the town. The money in the custody of the highway commissioner was the property of the town. It was not misappropriated, but was used, presumably, for the benefit of the town. If the town has the [600] machine and the money which should have been used for its payment has been applied to other town expenses it would seem that the town must stand sponsor for this valid agreement. > Section 182 of the Town Law (Laws of 1890, chap. 569) provides, that any action on behalf of the town “ upon a contract lawfully niad’e with any of its town officers * * * shall be in the name of the town.” The section also provides that, if the action is te enforce against the town any.liability of the town upon such contract it shall be named the defendant. The section further., provides as follows: “ And all contracts- made by such officers for and in behalf of their towns shall be in the name-of the town. When such contracts aré otherwise lawfully made, they shall be deemed the. contracts of the town, notwithstanding it is omitted to be stated therein that they are in the name of the town.” The essential element to give validity to the contract of the ■highway commissioner is-its approval by the town board, and when that has been obtained the contract becomes a binding liability against the town. The contract is made in the name of the town,, approved by the town- board and the article purchased becomes the property of the town, so that the town cannot escape payment upon the ground that its highway commissioner does not represent it. Section 10 of the Highway Law, as amended by chapter 84 of the Laws of 1899, requires the commissioner, when a bridge or any highway has been damaged or destroyed and the repair or rebuilding will cost to exceed $500, to enter into a written contract therefor which must be approved by the town board. When the contract has been so approved the town becomes charged with the liability created. (People ex rel. Groton Co. v. Town Board, 92 Hun, 585 ; Town of Saranac v. Groton Bridge Co., 55 App. Div. 134.) Prior to 1881' no liability attached to a town for injuries resulting-from a defective highway. There was no common-law liability imposed upon a town for the care of its highways, so that the commissioner alone was responsible for injuries accruing through his negligence. ' He was not, therefore, the agent of the town. He received moneys to be devoted to the maintenance of the highways. Lack of funds was a defense available to him. (Hover v. Barkhoof, 44 N. Y. 113.) [601] In 1881 (Chap. 700, revised in Highway Law, §§ 16-18) the law was changed, and a statutory liability was imposed, upon the town, and it became in a measure responsible for the acts of its commissioner in the care and maintenance of its highways. (Bush v. D., L. & W. R. R. Co., 166 N. Y. 210, 220, 221.) The care of- the highways became of vital concern to the town. The commissioner was not in terms made its agent, but by reason of the liability which might be . imposed upon it because of his negligence, the enactments already noted were placed upon the statute books giving him in certain cases specific authority, subject to the approval of the town board. The effect of this legislation, in the light of the new liability chargeable to the town, must have been to constitute the commissioner the representative of the town within the compass of the statutory authority committed to him.! He is not the general agent of the town, but where he is charged with the making of an agreement for the benefit of the town, that contract is the contract of the town and he its representative in creating the. liability which the agreement fixes. The commissioner of the defendant made an agreement strictly within the purview of the statute authorizing the purchase of the road scraper. By section 182 of the Town Law that agreement was the contract of the town. The defendant resisted payment, claiming that the commissioner did not make any agreement at all. With that issue settled against the defendant it cannot escape liability on the plea that-the contract was that of the commissioner instead of the town. Nor do I think the claim of the plaintiff should have been presented for audit to the town board at its annual meeting. It, of course, is the general policy of the law that accounts against a town shall be passed upon by the town board at its annual meeting. But I find no authority requiring that course where there is a fixed liability against the town, except where the statute authorizing the ■expenditure in terms makes the audit necessary, as in the case of extraordinary repairs of highways or bridges. (Highway Law, § 10, as amd. supra.) In the event of an expenditure for emergency ' repairs an audit is required and the expense is to be “ collected in the same manner as amounts voted at town meetings.” (Highway Law, § 10, as amd. supra.) The unexpected stress in cases of extra [602] ordinary or emergency repairs requires prompt action, and as the town is not prepared to meet the expenditure an audit is provided for and the town is thus given an opportunity to raise the' money. The fact that the Legislature provided for an audit in such cases indicates that an action could have been maintained on the written agreement without any audit had the statute not required that the claims, be run through the ordinary auditiñg channel. Section 161 of the Town Law (as amd. by Laws of 1902, chap. 269) requires the 'accounts of town officers who receive or disburse any moneys of the town to be audited by the- town board. This claim is not within that category, for it is a demand against the-town, not an account Of a town officer. If the commissioner has paid the purchase price for the machine he must include it in "his-statement of expenditures. The town board is .the auditing body, and its sanction is essential to give vitality to the agreement. When the liability has become fixed by ratification the town. board has acted and a subsequent audit -by the same body is unnecessary. The rule apparently is that when the demand is unliquidated and miad- - justed it must-be audited-by the board. When it has become a Settled and established liability an action will lie-without any further audit unless the statute in terms provides otherwise. (Bennett v. Town of Ogden, 81 App. Div. 455 ; Marsh v. Town of Little Valley, 64 N. Y. 112.) The judgment should be affirmed, with costs. ' Hiscock, J.,. concurred ; Williams, J., concurred in, result; McLennan, P. J., > dissented in an opinion in which Stoves, J., concurred. .