American Road Machine Co. v. Township of Washington

Opinion by Orlady, J., An agent of the plaintiff, with one of the supervisors of the defendant township, visited each of three other supervisors at their respective homes, and secured their signatures, in addition to his own, to an order directed to the defendant for one Champion rock-crusher, having as a condition, viz: “ If the said crusher does work as warranted on the back of this order, the undersigned agree to pay to the American Road Machine Company, or order, seven hundred dollars in cash, or note bearing interest at the rate of 6 per cent per annum from date of trial.” Soon thereafter the crusher was delivered and, while being tested, three of the supervisors inspected it and later in the same day the three signed township warrants for the contract price, one of which is the basis of this suit. The board of supervisors consisted of five members, and while the evidence shows that the board had elected a secretary, and each had knowledge of the several meetings of the members, it was also shown by the plaintiff’s evidence that there was not at any time during the several stages of the- transaction a meeting called or convened for the purpose of considering the purchase of, or payment for, the crusher; that no minutes were kept nor record made of any action taken in regard thereto. A judgment of nonsuit was entered, which the court subsequently refused to lift. No two of the four supervisors, who participated in making the contract for the purchase of the crusher, recollect the particulars of the transaction with any degree of certainty, and we have the anomalous fact of the liability of this township depending upon the confusing statements of the supervisors in regard to their own acts while under the tutelage of the plaintiff’s agent; all of which would have been avoided if they had acted at regularly convened meetings, and the township clerk, who, by the Act of April 15, 1834, P. L. 555, sec. 99, is the clerk to the supervisors of the township, had kept a record of the proceedings of the said officers open to the inspection of any person who might have occasion to search therein. [108] One supervisor cannot bind tbe township for performance o£ a contract, the propriety of entering into which is the subject of deliberation and the exercise of judgment, but he may in matters purely ministerial; when the business requires deliberation, consultation and judgment, all should be convened, because the advice and opinions of all may be useful, and though they do not unite in opinion, a majority may act when there are more than two: Union Township v. Gibbony, 94 Pa. 584. The judgment and discretion to be applied to the purchase of a machine of the value of $700, its material, construction, and efficiency, the business judgment required in providing for its payment, without disturbing the usual rates and levies of the township, place this act clearly within the deliberative duties of the officers. As is aptly stated by the learned trial judge that “It is only by meeting regularly in session that there can be that deliberate consideration which the law expects and requires. A result reached in a way which doés not afford to each individual member of the board the benefit of the advice and judgment of every other member, at least the opportunity to get these, cannot be said to be the deliberate action of the board. What is expected is, in conference a mutual interchange of views and a result based upon those reached by a majority of those present. The way in which this order was given and obtained precluded anything like a conference and comparison of views; it was the assent of individuals, not corporate action. . . . The original order is the evidence of the contract. By it the supervisors who signed it, undertook to obligate the township for the price of the crusher in case it worked as represented in the printed statement indorsed thereon, the company agreeing to take it back in case it failed to do so, and cancel the contract. What was this but a purchase on a guaranty? The notes subsequently given were at best but an acknowledgment of the sufficiency of the machine, a fact in the case not disputed.” The action needed is not that of the individuals who compose the board, but of the official body: Penna. R. R. Co. v. Mont. Co. Pass. Ry., 167 Pa. 62; Pike Co. v. Rowland, 94 Pa. 238; Jefferson Co. v. Slagle, 66 Pa. 202. The meeting of the supervisors in the office of their counsel, which appellant urges “ was the final act of the purchase, and [109] the act by which the township was bound,” adds no support to plaintiff’s claim, as the two of the three supervisors, who signed the note in suit testified that the transaction was completed prior to that meeting, save only to sign the notes, and the other seems to know but little of the transaction. The testimony of the president of the board, on which appellant relies, is so contradictory and doubtful, and in its material parts so directly denied by the other two supervisors that it would be insufficient to carry the case to a jury or support a verdict. At the most it was not more than a mere scintilla: Lerch v. Bard, 158 Pa. 573. The appellant urges that because, by Act of June 23, 1897, P. L. 194, road supervisors are authorized to join with the like officers of one or more townships in the purchase of road making implements and machines, that a purchase similar to the one in this issue is a ministerial and not a deliberative act. To this we do not agree. The terms of that act do not diminish the duty of the supervisors to meet and act as a corporate body, and it does not apply to the case before us. The judgment is affirmed.