Armstrong v. Village of Fort Edward

The plaintiff in this action seeks to recover of the defendant for services rendered to its board of water commissioners in bringing about a sale of bonds of the par value of $97,000, for the sum of $105,000. The questions presented to this court are three in number.

(1) Did the board of water commissioners have the power to employ the plaintiff ?

(2) Did the plaintiff assist in bringing abqut the sale ?

(3) If he did, were the services performed with the understanding between the board and himself that he should be paid for them ?

The answer to the second and third questions must be found in the testimony, but the authorities dispose of the first question. Mayor, etc., v. Sands ( 105 N. Y. 210 ) was an action brought to recover moneys paid to an agent for selling the bonds of the city of Hew York, the agent being at the time one of the municipal officers, namely, a commissioner of taxes. It was held that the courts will take judicial notice of the fact that in a sale of bonds and negotiations for loans in behalf of states, municipalities and governments, aside from their own fiscal agents, other agents are employed, and that the fact that an agent so employed was at the time a city officer did not deprive him of the right to receive and retain the agreed compensation. But it should be observed that while the agent was a city officer, he was in nowise connected with the department of government charged with the sale and disposition of the bonds. In the course of the opinion Chief Judge Huger said : “ It is a matter of public history, of which courts will take judicial notice, that in the sale of bonds, and negotiations for loans in behalf of states, municipalities and governments, the services of their own fiscal agents are usually, if not invariably, supplemented by the employment of bankers, brokers and other financial agencies to aid in raising

The contract that was declared void in the case of Village of Fort Edward v. Fish ( 156 N. Y. 363 ) related to a portion of the bonds that this plaintiff claims to have assisted in selling. While the question there presented is a very different one from that involved in this case, nevertheless this court did have occasion to consider the implied powers of the water commissioners. Said the court at page 372 : “ The actual power was to borrow money by issuing and selling bonds at not less than par. The express power to issue bonds involved the implied power to pay for engraving, printing and the like. The express power to sell bonds doubtless carried with it the implied power to pay counsel for an opinion as to the validity of the bonds,, as was done in this case, and possibly to pay a commission to brokers for selling the bonds. These expenses were incidental to the duty imposed and fairly came within the scope of the main power.” This last case calls attention to the rule by which the authority of officers, such as the members of this board of water commissioners, to make contracts may be determined. Where there is an express grant of power to them it carries with it, by necessary implication, every other

It appears from the evidence in this case that this defendant secured a price for its bonds which at that time could not be obtained through brokers. When this plaintiff’s attention was brought to the subject of the disposition of the bonds, the situation of the commissioners in relation thereto was something like this: The contract to build the water works had been let, and the work had progressed for some time; the obligation to provide for payment of the installments named in the contract was pressing; the bonds, which were four per cent bonds, were advertised and offered for sale at public auction in May, 1893, but owing to the stringency of the money market no bidders appeared; there was present at the sale a Mr. Cantwell, a dealer in bonds, but he declined to bid for them and the board resolved to postpone the sale for sixty days and they encouraged him to attempt to secure an offer for the bonds. A month and a half rolled around and Cantwell had not succeeded in finding a purchaser for the bonds, nor had any of the others succeeded in finding a person who would buy the bonds or any portion of them, and so the board con

It being established that the board of water commissioners had power to employ this plaintiff, we come to the two remaining questions, which are whether the plaintiff actually assisted in bringing about the sale of the bonds, and also whether such services were upon the understanding between himself and the water commissioners that he should be compensated. As to these questions this court has no occasion' to go further than to inquire whether there was sufficient evidence in support of each proposition to entitle the plaintiff to go to the jury. It appears that the plaintiff by personal solicitation secured the services of friends who urged their purchase upon the comptroller, who was at liberty to purchase or not as he chose and who subsequently purchased the bonds. The plaintiff testified that he was away from home eighteen days in the effort to bring about a sale of the bonds, and the fact appears that the, board of water commissioners passed a resolution, under which they offered to pay him $25 a day for the eighteen days that he gave to the work. It is quite apparent from what has already been said that there was sufficient evidence adduced to entitle the plaintiff to go to the jury on the

This brings us to the third question, which is in effect whether the services performed were upon an understanding between the board and the plaintiff that he should be paid for them, and again the inquiry must simply be- whether there was such evidence of an understanding that he was to be compensated as entitled him to have the jury pass upon the question. At the outset we find a report from the president of the board, who had been appointed with Mr. Hull, their counsel, a committee on the sale of the bonds, and also a statement from the minutes of the board under date of June 26th as follows: “ At their request Mr. Armstrong has been associated with them in the effort to find a purchaser for the bonds. A number of parties had been seen but no definite arrangement has been made.” On July 6th, the report to the board showing that all efforts so far made to sell the bonds had been unavailing, a resolution was passed by the board authorizing the committee to pay a sum not exceeding $1,000 to any person who would secure a purchaser for the bonds at par and accrued interest. The plaintiff testified that when the president started to interest him in the matter of selling the bonds, he, the president, said that Mr. Hull had suggested that they employ him, the plaintiff, to assist in selling the bonds. That subsequently Mr. Hull did come to him, and in the course of the conversation Mr. Hull said: “ If you will take hold and help you will be paid for your services. * * * I said to Mr. Hull I did not know what I could do, but I would try ; I afterwards attended a meeting of the water board, and had some conversation with members of the board in regard to the matter.” Later on the witness testified that after his return from a visit to Albany, where he had been in an effort to sell the bonds, he learned that Mr. Cant-well had been given an option to sell the bonds for sixty days, and thereupon he attended a meeting of the board, and he testifies : “ I stated that in the board; I inquired of the board whether that was true, saying to them at the time that if they

As a nonsuit was granted at the close of plaintiff’s case, there was no evidence given on the part of the defendant, nor was. there any on the part of the plaintiff in conflict with that we

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed, etc.