Bonesteel v. Mayor of New York — 19 N.Y. Super. Ct. 550

Majority

p. 550

Robert G. Bonesteel, Plaintiff and Appellant, v. The Mayor, &c., of the City of New York, Defendants and Respondents.^[1]

Headnote

1. When, in accordance with the provisions of the charter of the city of New York, the Street Commissioner, as the head of one of the departments, has issued and published a notice containing specifications of work to be done for the Corporation, directed to be done by ordinance of the Common Council, and inviting proposals or bids therefor from contractors, and the proposal of the lowest bidder is accepted and the contract awarded to him, and such notice, specifications, offer and award are by the Common Council duly approved and confirmed, the Street Commissioner has no power to bind the city by executing a contract with the bidder, differing in any material particulars from the specifications, in reference to which the offer or bid, and the award and confirmation were made, and such a contract is void as against the city!

2. Where the contract which is executed, in general terms binds the bidder to perform the work according to the specifications, the work will be deemed done under the contract, unless other terms of the contract are clearly inconsistent with such specifications.

3. If the contract which is so executed be void for such inconsistency and want of authority to depart from the specifications, the bidder will nevertheless be bound to perform the work according to his offer and the specifications in reference to which it is made; the notice inviting offers, the bidder’s offer, the award, and the approval and confirmation thereof in such case, constitute the actual contract between the parties.

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4. If a contracting party intentionally violates his contract, and refuses to perform it, by departing from its provisions in a material particular, he cannot recover anything, not even the value of his work, although the work he performs is valuable and beneficial to the other party.

5. A party contracting to perform work according to specifications agreed upon, is not at liberty to depart therefrom in material particulars, as his interest may prompt, and then claim to be paid, as upon a quantum meruit, the value of his work, on the ground that his work is beneficial or valuable to the other party.

(Before Hoffman and Woodruff, J. J.)

Heard, April 16th;

decided, May 12th, 1860.

Appeal from a judgment for the defendants on the report of Henry J. Scudder, Esq., as Referee, who, on the trial of the action, dismissed the plaintiff’s complaint.

The action was brought to recover the amount alleged to be due by the defendants for work done by Philip J. Bonesteel, in regulating and grading Seventieth street, under an alleged contract between the defendants and one Nicholas McDonald, which contract was, with the consent of the defendants, assigned to the said Philip J. Bonesteel, by whom the work was done, so far as the contract was performed. After the alleged performance of the contract, Philip J. Bonesteel assigned to the present plaintiff his claim to the money alleged to be payable by the defendants. No question arose on the pleadings which does not sufficiently appear in the following statement of the facts :

On the 10th June, 1851, the defendants, in common council convened, duly passed the following resolution and ordinance;

“ Resolved, That Seventieth street, from the Tenth avenue to the Hudson river, be regulated and graded under the direction of the Street Commissioner, and that the accompanying ordinance therefor be adopted.

“Be it ordained by the Mayor, Aldermen and Commonalty of the city of New Ybrh, in Common Council convened, that Seventieth street, from Tenth avenue to the Hudson river, be regulated and graded, under such directions as shall be given by the Street Commissioner and one of the City Surveyors.

“ And whereas, the said Mayor, Aldermen and Commonalty deem it necessary, for the more speedy execution of the said ordinance, to cause the work necessary for the purpose above specified, to be executed and done at their own expense on

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account of the persons respectively upon whom, the same might be assessed: Therefore be it further ordained, that Samuel H. , Thomas Nicholson, and Isaac W. Smith be and they are hereby appointed assessors, to make a just and equitable assessment of the expense of conforming to the provisions of this ordinance, among the owners or occupants of all houses and lots intended to be benefited thereby, in proportion, as nearly as may be, to the advantages which each may be deemed to acquire.” On or about the 14th of August, 1851, John T. Dodge, then Street Commissioner, the proper officer for that purpose, in obedience to the said resolution and ordinance, issued and published a notice containing specifications of the work proposed to be done with a surveyor’s estimate of the probable amount of work, (or yards of excavation, &c.,) and inviting proposals from parties desiring to undertake the work, and the price or estimate of the amount or rate at which they would perform it. The material parts of such notice and specifications and estimate so published, are as follows:

“ STREET DEPARTMENT,

“ No. 4 Hall of Records.

“To Contractors.

“ Sealed proposals will be received at the Street Commissioner’s office until Eriday, August 27th, 1852, at 12 o’clock M., to regulate and grade Seventieth street from Tenth avenue to Hudson river.

The street is to be regulated and graded in conformity to the Commissioner’s grade, as shown on the profile in the Street Commissioner’s office; and the carriageway and sidewalks properly shaped. The earth required to be excavated is to be used in regulating the street, and to be paid for only as excavation. The rock is to be excavated one foot below the finishing grade, and deposited on the street and in the river in continuation of the street, as the Surveyor directs, and to be paid for only as excavation. No boulders to be allowed for as rock. Stone culverts, three feet wide, by four feet high inside, to be built where directed.

“All the work and materials to be under the direction and superintendence of the Surveyor, and such other person as may

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be appointed by the Street Commissioner to inspect the same; and any materials furnished or any work done not satisfactory to either of them shall be immediately removed, and other work done and materials furnished satisfactory to them.

“Estimators will state in their estimates the prices for the following work and materials, as before mentioned: For excavating and removing earth, per cubic yard; for excavating and removing rock, per cubic yard; and for furnishing materials and building stone culverts, per lineal foot; also, the time required to complete the work. x x x x -x- -x- -x- * x x- xxx x x x x x

“ The Surveyor’s estimate of the probable amount of work by which the bids will be tested, is as follows: 19,000 cubic yards of rock excavation, 6,000 cubic yards of earth excavation, and 80 lineal feet of stone culvert. * * * * * * * *

“ Inasmuch as great latitude has heretofore been allowed in the fulfillment of contracts, notwithstanding clearly written stipulations to the contrary, signed by contractors, it is thought well to give express notice that, hereafter, contractors will be required to conform to the very letter of the specifications on any work which they may undertake. Contractors, therefore, will bear in mind that former precedents will not be received as an excuse; and that any work or materials not strictly in accordance with the specifications of their contract will be positively rejected.

“Work or materials not specified, and price fixed on in the contract, will not be allowed for.

“ Payment to be made on the confirmation of the assessment.”

This notice and specification also stated that a strict compliance with the ordinances concerning “ contracts for supplies and work done for the Corporation,” will be observed and required in all cases.

The said notice and estimate of work, and the specifications therein, being seen by Nicholas McDonald, he, in response thereto, (and among other persons desiring to perform the work,) presented his proposal, or bid, to the Street Commissioner, offering to do the work. His proposal and estimate was as follows; and it was accompanied by an affidavit and an instrument of agreement to become surety for him, which was signed by the before mentioned Philip J. Bonesteel, annexed thereto:

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“ Estimate for Regulating and Grading Seventieth street, from Tenth avenue to Hudson river.

“ Dated August 27th, 1852.

“ Made by N. McDonald, of the city of New York, Seventy-first street: I dp declare that I am the only person interested in this estimate, and that no other person than herein named has any interest in this estimate, or in the contract proposed to be taken.

“2. I further declare, that this estimate is made without any connection with any other person or persons making an estimate for the same work; and is in all respects fair and without collu- ■ sion or fraud.

“ 3. I further declare, that no member of the Common Council, head of a department, chief of bureau, deputy thereof, or clerk therein, or any other officer of the Corporation of the city of New York, is directly or indirectly interested therein, or in the supplies or works to which it relates, or in any portion of the profits thereof.

“ 4. I refer to the estimate and specification as forming part of this estimate, issued by the Street Commissioner for estimates in relation to this contract, dated August 14th, 1852, and signed by him.

“For excavating earth, per cubic yard,.............12^ cents.

For “ rock, “ “ “ .............62£ “

For culverts, per running foot,...................90 “

“ City and County of New York, ss:

“ Nicholas McDonald, being duly sworn, says: That the several matters stated in the annexed estimate are in all respects true.

“ Nicholas McDonald.

“ Sworn and subscribed to, this )

27th day of August, 1852, j

“M. G. Hart,

“ Gommr. of Deeds.”

“In consideration of the premises, and of one dollar to us paid, we, the undersigned, consent and agree, that if the contract mentioned in the annexed estimate be awarded to the person or persons making the estimate, they will become bound as sureties for its faithful performance, and that if the said person or per

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sons shall omit or refuse to execute the said contract, if so awarded, we will pay to the Mayor, Aldermen, and Commonalty of the city of New York any difference between the sum to which such person or persons would be entitled upon the completion of such contract and that which the said Mayor, Aider-men, and Commonalty may be obliged to pay to the next highest bidder, to whom the contract may be awarded.

“Witness our hands this 26th day of August, A. D., 1852.

“ P. J. Bonesteel.

“ J. W. Tbipp.

“ In presence of

“ Chables Holmes,

“ Oommr. of Deeds."

The said Nicholas McDonald being the lowest bidder, the contract was awarded to him as required by the ordinances referred to in the Street Commissioner’s said specification.

Two of the said ordinances are as follows:

“ § 493. All contracts to be entered into on the part of the Corporation, for the purpose mentioned in the last section,” (which includes work to be done for the Corporation,) “ must be authorized by the Common Council; and when so authorized, shall be made by the department under whose direction the supplies are to be furnished, or the work performed,” (excepting certain contracts not relating to the subject now in question.)

“ § 494. No contract shall be made, signed, or executed, until proposals therefor have been advertised, and estimates received and decided upon, as provided by the ordinance (except when otherwise provided by law); nor shall any contract be made, signed, or executed, for a sum exceeding two hundred and fifty dollars, until all the proposals, estimates, contracts, and papers relating thereto shall have been laid before the Common Council, and confirmed by them, and an appropriation made therefor.”

McDonald’s bid or proposals and estimate and papers above mentioned were laid before the Common Council, and the award to McDonald was confirmed.

Thereafter the Street Commissioner caused to be prepared an agreement, which was executed by the said McDonald on his part

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and by the Street Commissioner on behalf of the defendants, the parts whereof that are material to be stated are as follows:

“ This agreement, made and concluded this twenty-first day of October, in the year of our Lord one thousand eight hundred and fifty-two, between the Mayor, Aldermen, and Commonalty of the city of New York, by their Street Commissioner, John T. Dodge, of the first part, and Nicholas McDonald, of the said city, contractor, of the second part, Witnesseth: That the said party of the second part has agreed, and does hereby agree, under the penalty expressed in a bond bearing even date herewith, to furnish all the materials and labor to regulate and grade Seventieth street from Tenth avenue to Hudson river, according to the specification.

“The street is to be brought to the grade-line on the profile in the Street Commissioner’s office. The sidewalks to be regulated with a sufficient rise from the curb-grade, and the carriageway to be properly shaped, under the direction of the Surveyor. The contractor to excavate the portion above the grade, and fill it into the portion below, which is only to be allowed for as excavation, and to furnish and fill in surplus earth; the rock to be excavated two feet below the line of the curb-stone grade, and to be allowed for as excavation only; no boulders to be measured or allowed for as rock; all the rock excavated by the contractor to belong to him, upon his furnishing at his own cost an equal quantity of earth, and filling it on the street where required.

“Firm and substantial stone culverts, three feet wide and four feet high, tobe built in each part'of the street as maybe directed by the Surveyor.

•if ff ■K' ff -If 4f if *!f if if if if if if if if if if

“ And the party of the second part hereby agrees * * * to conform the work to such further directions as may be given by the Street Commissioner and one of the City Surveyors * * * ****** anq that he will commence the aforesaid work without delay, and progress therein, so as to complete the same by the 21st day of June, one thousand eight hundred and fifty-three.”

The specification in this contract referred to is what is contained in the notice issued by the Street Commissioner, but the contract did not in terms require McDonald to use the earth

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and rock excavated solely on the street, and by depositing it in the river in continuation of the street as the Surveyor directs. But the contract did in terms recognize and refer to the specification.

The foregoing facts are found in substance, and the Referee found further, as follows:

“ Fifth. That Gardner A. Sage was appointed, by the Street Commissioner, Surveyor of the work, and gave the contractor the grade-lines of the street, and directed the work to be done in conformity with the specifications contained in the notice to contractors, read on the trial, and the excavation to be only one foot below the curb-grade, and that the rock excavated should be deposited in the river in continuation of the street.

“Sixth. That considerable quantities of earth and rock were deposited in the river outside of high-water mark, as directed by the Surveyor, but the larger portion thereof was not so deposited, and that the contractor refused so to do, and converted the same to his own use.”

(The proof was that he sold it for his own benefit, notwithstanding the directions of the Surveyor to desist, and to deposit it in the river.)

“ Seventh. That the surface of said street was graded in conformity with the established grade of Seventieth street, and was graded as well as is usually done in such cases, and as directed by said Surveyor, from Tenth avenue to high-water mark of the Hudson river, and that said grading was completed some time in the year 1855.

“FKghth. That the quantity of work done was 16,837 cubic yards of rock excavated, 8,879 cubic yards of earth excavated, and 100 lineal feet of stone culvert built, which, at the price mentioned in the contract set out in the complaint, would amount to $11,733.

“ Ninth. That the said contract was assigned by McDonald to Philip J. Bonesteel, before any work was done, and that all the work was done by said Bonesteel, assisted by said McDonald at the commencement, and afterwards by one Bradley; and that said Bonesteel never saw said notice to contractors, or any other paper, directions or specifications, than such as are contained in the contract assigned to him.

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“ Tenth. That the grade of the street, at the point of crossing the Hudson River Railroad, was 17£ feet above the grade of the railroad. The work of grading the street was suspended for twelve months for the bridge across the railroad to be built, which was built for or by the Railroad Company, and that said work of grading was not completed within the specified time, by reason of said bridge not being built by said Railroad Company.”

The following are the Referee’s conclusions of law:

“Mrst. That the only contract between the parties, proven on the trial, was the notice to contractors, the written bid of McDonald, and the acceptance of such bid by the defendants and that such contract not having been fully performed by the assignor of the plaintiff, in not depositing the surplus rock in the river, in continuation of the street, the plaintiff cannot recover.

“ Second. That the contract set out in the complaint, not being conformable to the notice to contractors in requiring the surplus rock to be deposited in the river in continuation of the street, is void.

“ Third. That the complaint should be dismissed, with costs.”

Judgment dismissing the plaintiff’s complaint, with costs, was entered, from which he appealed to the General Term.

C. L. Monell, for the plaintiff (appellant).

I. The Referee erred in deciding that the only contract between the parties was the notice to contractors, the written bid of McDonald, and the acceptance of his bid by the defendants.

1. The contract set out in the complaint was admitted to have been executed between McDonald and the Street Commissioner.

2. Such contract was entered into after all the requisites of the statute and of the defendants’ ordinances had been complied with, and after it had been confirmed by the Common Council, and by them awarded to McDonald.

3. The notice to contractors, the bids for the work, the acceptance of McDonald’s as the lowest, the confirmation by the Common Council, and the awarding the contract, were preliminaries required by the defendants’ ordinances to render the contract valid. Until all these were done, there was no authority for the Street Commissioner to make a contract for public work.

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4. The Corporation, by general ordinance, have committed the duty of issuing proposals, receiving bids, declaring who is the lowest bidder, and executing contracts for work of the character performed in this case, to the Street Commissioner; but declaring that no contract shall be executed by him until the proposals and estimates have been laid before the Common Council, and confirmed by them.

5. Until the proposals and estimates are laid before the Common Council, and confirmed, the Street Commissioner is not authorized to execute a contract. Upon confirmation of his decision, as to the lowest bidder, he is directed to execute the contract.

6. The contract thus directed, and such as was executed in this case, is presumed to contain the whole of the agreement between the parties, and to embrace and include all the previous and preliminary matters, from the passage of the ordinance to the signing of the contract. It was complete in all its parts, was unambiguous, required no explanations, and imported on its face all that the parties agreed to.

7. Had not the terms of the agreement been reduced to writing, and the instrument set out in the complaint signed by McDonald and the Street Commissioner, no doubt the bid and acceptance of it would, of itself, have been a legal contract. (Hunt v. City of Utica, 18 N. Y. R., 442.)

But here, the bid, and acceptance of it, and all the details of the agreement, together with the specifications for the work, were merged in the only contract the Street Commissioner was authorized to execute. If this be not so, why execute a contract at all? If the bid, predicated upon the notice, and its acceptance was the only contract between the parties, the ordinance requiring the Street Commissioner, after a confirmation of his decision as to the lowest bidder, to execute a contract, was quite unnecessary.

8. It was not in the contemplation of either of the parties that the contract should rest in the notice to contractors, the bid and acceptance merely, but that its terms should be subsequently reduced to writing, and signed by the contracting parties. And the uniform practice has been, upon the acceptance of a bid, to execute a contract with the successful bidder. Such seems to have

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been the view of the late Chief Justice, in Smith v. Mayor. (4 Sandf. S. C. R., 221.)

9. The contract as signed by the parties differs in some particulars from, and contains much more than is embraced in, the notice to contractors.

There cannot, it seems to me, be a reasonable doubt, that the contract set out in the complaint was the only contract between the parties, and that all that preceded it was merged in that instrument. And the judgment dismissing the complaint cannot be sustained on the ground, that the proposal, bid, and acceptance was the only contract.

II. The Referee erred in deciding that the contract executed by McDonald and the Street Commissioner was void, not being conformable to the notice to contractors in requiring the rock to be deposited in the street, and in the river in continuation of the street.

1. The ordinance, which was the only authority to the Street Commissioner to issue the notice to contractors, directed that Seventieth street be regulated and graded from the Tenth avenue to the Hudson river, under the direction of the Street Commissioner. Any contract to regulate or grade beyond the Hudson river, i. e., high-water mark — would have been ultra vires and void.

2. The notice for proposals, in requiring the deposit of rock in the river, and beyond high-water mark, carried the work further than the ordinance permitted, and was therefore entirely unauthorized.

" 3. The general ordinances of the Corporation prescribe what shall be contained in the proposals for estimates, and nowhere is there any authority for the Street Commissioner to exceed or limit the ordinance, which is the basis of his action. The words “ under the direction of the Street Commissioner,” in the ordinance, have respect to the work permitted by the ordinance, and do not enlarge the powers of the Street Commissioner.

4. But, if there was authority for the Street Commissioner to enlarge the ordinance, and to issue proposals for more work than the ordinance required, it was competent for him to limit by his contract, subsequently entered into, the work to the extent permitted by the ordinance. This was done by the contract he

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made with. McDonald, which is to regulate and grade the street “ to the Hudson river,” in the words of the ordinance; and this is presumed to include all the parties agreed to. The rock, which, by the proposals, was to be deposited in the river, by the contract was given to the contractor.

III. Though the contract was void for the reason given by the Referee, or for any other reason, yet the contractor having Iona fide completed the work, and it having inured to the benefit of the city the plaintiff is entitled to recover upon a quantum, meruit.

The testimony of the Surveyor appointed by the Street Commissioner to superintend the work is, that he gave full directions to the contractor in respect to the work, and “ that the work was completed between the Tenth avenue and high-water mark of the Hudson river, as well as is usually done in such cases.” And the Referee finds the same.

Having therefore completed the work under his contract, he is entitled, notwithstanding any infirmity in his contract, to be paid what the work is reasonably worth.

The Corporation has received the benefit of the work, a recovery can be had upon a quantum meruit. (Clark v. Guardians of C. U., 11 Eng. L. & Eq., 442; Bulkley v. Derby Fishing Co., 2 Conn., 252 , 260; Sanders v. Guardians of St. Noet's Un., 55 Eng. Com. L., 810; Doe v. Taniere, 64 id., 1013; Reuter v. The Electric T. C., 6 Ellis & Black., 341; Bigelow v. City of Perth Amboy, 1 Dutch., [N. J.,] 297.)

A municipal corporation is governed by the same rules, as to its liability, as apply to private corporations or individuals. (Peterson v. Mayor of New York, 17 N. Y. R., 449.)

IV. The case presents itself strongly to the favor of the Court. It is meritorious in any aspect in which it can be viewed. There is no suspicion or pretense of fraud. It is not disputed that McDonald was the lowest bidder; that his bid for the work was very low; that-Bonesteel performed the work faithfully; that he never saw the proposals or any other specifications for the work, than such as were contained in the contract assigned to him by McDonald; and that the city has received the benefit of the labor and money expended by him.

The judgment should be reversed, and a new trial granted.

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Greene C. Bronson, for defendants (respondents).

L The Referee correctly decided that the notice to contractors, the written bid of McDonald, and the acceptance thereof, constituted the only contract which the Street Commissioner had power to make for the work in question. (Smith v. Mayor, &c., 4 Sandf., 221 , 226; Brady v. Mayor, &c., 2 Bosw., 173 .)

Even if the Street Commissioner stood in the character of an agent of the defendants, the plaintiff and all others dealing with him were chargeable with knowledge of the extent of his authority, it being defined by law. (Delafield v. State of Illinois 2 Hill, 159 , 175.)

II. The contract not having been fully performed by the assignor of the plaintiff, in not depositing the surplus rock in the river in continuation of the street, no recovery can be had upon it. (Smith v. Briggs, 3 Denio, 73 .)

III. The Referee was also right in holding that the contract set out in the complaint was void, because it did not, in essential particulars, conform to the notice to contractors. (See cases under Point I.)

IV. If it be contended that the words “ according to the specification,” in the contract, refer to the notice or estimate, and not to what therein follows, then they, necessarily form a part of the contract, and the result is the same for the breaches alleged and found. (Rogers v. Kneeland, 10 Wend., 219 ; Coddington v. Davis, 1 Comst., 186.)

I. The contract and notice are consistent in requiring the rock to be excavated below the line of the curb-stone grade, and the failure to do this was sufficient to prevent a recovery upon the contract.

(a.) That the manner in which this was done was according to the direction of the surveyor, affords no excuse for the default. The stipulation in this respect was plain, and none but the defendants could waive performance. ( 2 Hill, 175 .)

V. If the Street Commissioner could exercise the power claimed for him by the plaintiff, then he can substantially change the contract, override the proposals, and defeat the very object of the ordinance.

The judgment should be affirmed.

There are two aspects in which the case may be considered.

The contract between the plaintiff’s assignor, McDonald, and the defendants, is to be treated, First, as contained in the ordinance of the 10th day of June, 1851; the notice and specification of the Street Commissioner of the 14th day of August, 1852; the proposal of McDonald of the 27th day of August, with its affirmation and acceptance, and the agreement of the 31st day of October, 1852; or, Second, (as the Referee has concluded,) as contained in all of these documents except the last.

In examining the case on the first hypothesis, we find that McDonald, in Ms proposal and estimate, refers to the specification of the 14th day of August, as forming part of his own estimate. The agreement of October declares, “ that he agrees to furnish all the labor and materials to regulate and grade Seventieth street, from Tenth avenue to Hudson river, according to the specifications If such specification was the notice of August, that explicitly declared “ that the rock was to be excavated one foot below the finishing grade and deposited on the street and in the river, in continuation of the street, as the Surveyor directs, and to be paid for only as excavation.” That notice containing this clause was plainly the specification adopted and referred to in McDonald’s estimate and offer; and we think it was also the specification referred to and adopted in the agreement of October.

It is found “that considerable quantities of earth and rock were deposited in the river outside of higMwater mark, as directed by the Surveyor; but the larger portion thereof was not so deposited, and that the contractor refused so to do, and converted the same to Ms own use.

By the term “contractor” is no doubt meant Philip J. Bone-steel, to whom the contract had been assigned by McDonald, and by whom all the work was done.

In this view, the specification containing the clause in question has been made as fully part of the contract, as if it had been set forth at length and adopted in it. Theinstrumen ts are so connected together by a sufficient reference, as to make them all constitute the contract between the parties. Hills v. Miller, (3 Paige, 254,) and the cases there cited, declare the rule when there are several cotemporaneous instruments in relation to the same subject-matter.

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Van Hagen v. Van Rensselaer, ( 18 John., 420 ,) Adams v. Hill, (16 Maine, 215,) Rogers v. Kneeland, ( 10 Wend., 219 ,) are examples of its application to instruments executed at different times, but connected by the subject and a reference.

It appears to me clear that Philip J. Bonesteel, the assignee of McDonald, and who actually performed the work, must stand as to every obligation, duty and right, precisely as McDonald would have stood; that he is chargeable with knowledge of every thing between the original parties, affecting their legal relations; and certainly, that he could not become assignee of a contract referring to a specification as regulating its execution, without being as much bound by it as if he had been personally privy to it. The fact found that he did not see the notice to contractors, or other papers, is wholly immaterial. It was impossible that he could, without some new action, acquire any better right or claim, or be in any different legal position than his assignor.

Besides, it is found that the direction of the Surveyor was, that the work was to be done according to the specifications in the notice, and that the rock was to be deposited in the river in continuation of the street. This the contractor refused to do, and converted the large portion of the rock to his own use.

Second. We concur also in the view taken by the Referee, so far as to hold, that if the clause in question is no part of the actual contract between the parties, then the agreement between the Street Commissioner and McDonald was inoperative, because unauthorized. The contract which the defendants had before them and confirmed, was a contract embracing the provision. The Street Commissioner was powerless to bind the defendants to any contract of which that provision was not, in some form, an integral portion. It was that which they had confirmed under the 494th section of the ordinances given in evidence, and no other.

The breach of the contract, and the breach in a matter which must be assumed to have been material, is apparent and flagrant. The plaintiff cannot sustain a claim upon the contract with any shadow of pretense.

It is then insisted, that he shall be entitled to recover for the value of the work he has actually performed.

' It is obvious that the adoption of such a principle will sanction the violation of every stipulation or covenant, however impor

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tant to one contracting party, at the risk merely of the violator losing some profit derivable from its entire completion, but with the certainty of being fully reimbursed for whatever he performs, and possibly with the result of profiting by his own neglect. In short, it breaks down a contract which was indivisible and entire, and demanded compliance in every material particular, into a contract fashioned and performed according to the will or the interest of one party to it.

The case of Brady v. The Mayor, &c., of New York, (2 Bosw. R., 173; Court of Appeals, 20 N. Y. R., 312,) settled that a contract made in violation of the provisions of the 12th section of the charter of 1853, was void. ■ The Court of Appeals say: “ It was not necessary to deny that one who has bona fide performed work under a contract which is void, from a failure to comply with the statutes, may maintain an action against the city to recover a quantum meruit, where the work has been accepted by the city, and has gone into use for public purposes.” There was no acceptance or ratification, and the decision of the Superior Court was not interfered with on this point. The Court of Appeals has in no way intimated that a recovery as for a quantum meruit can be had by one who willfully violates a material portion of the contract he has entered into.

The learned counsel asks us to review the rule stated in that case, or not to apply it to the one before us, upon the strength of several authorities which he cites.

Clark v. The Guardians of Cuckfield Union, (11 Eng. L. & Eq. R., 442,) was the case of work done on behalf of a corporation, necessary for its purposes, faithfully done, and accepted and profited by; the whole consideration for the payment was executed. The corporation could not defend, on the ground that the contract was not under seal.

Bulkley v. Derby Fishing Company, (2 Conn. R., 252,) was the case of an insurance company, pursuing a course of contracting through agents, for some length of time; profiting by it—never disavowing it—and which, if not prescribed, was not prohibited by, or at variance with, the charter.

Reuter v. The Electric Telegraph Company, (6 Ellis & Black. R., 341,) is also found in 37 English Law and Equity Reports, 189. There was a parol agreement between the plaintiff and the chair

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man of the Company, to do certain work for it. By the charter, the contracts of the company for labor, &c., when under £50, might be entered into by any officer empowered by the Directors. Other contracts were to be entered into and signed by three Directors, or to be sealed. It was held, that the objection of the want of a seal was invalid. Next, that even supposing that the consideration which passed exceeded £50, and the contract by the chairman was originally ultra vires, yet it had been acknowledged and ratified by the Company, so as to render it binding upon them. “ The deed of settlement declares, that the Directors shall manage the affairs of the Company, and shall exercise all powers which may be exercised by the Company at large. The facts set out in the case afforded abundant evidence that the Directors were made acquainted with the new contract, approved of it, and acted upon it.”

In Bigelow v. The City of Perth Amboy, (1 Dutch. [N. J.] R., 297,) it was expressly ruled that the city had the corporate power to make the purchase in question, and incur the debt. The creditor had nothing to do with the use of the materials afterwards.

In Sanders v. The Guardians of St. Noet’s Union, (8 Adolph. & Ellis R., N. S.; 55 Eng. Com. L. R., p. 810,) work was done for purposes connected with the objects of the corporation. It was accepted and adopted. The objection that the contract could only have been made under seal was untenable.

Doe v. Tanniere (64 Eng. Com. L. R., 998,) rests upon a similar principle.

Such authorities are widely different from the case before us, of an intentional violation of a material part of an indivisible contract, without any act of ratification in any legally known manner —indeed, without proof of the body having profited by the work.

It seems scarcely necessaiy to advert to the numerous and decided cases in our State, in which, when the performance of a contract is one entire thing, and the contract has been broken, no ground of action exists for the value of that part which may have been performed. (Mead v. Degolyer, 16 Wend., 632 ; Paige v. Ott, 5 Denio, 406 , and cases of a similar character.)

We think the judgment should be affirmed.

Judgment affirmed,-with costs.