On appeal from the District Court of the city of New Brunswick.
For the appellant, Wesley Benner (Meehan & Waltzinger, of counsel).
For the respondent, Richard F. Potter.
Before Justices Campbell, Lloyd and Bodine.
The opinion of the court was delivered by
CAMPBELL, J. Plaintiff, the assignee of Christopher Marzella, sued for the construction of a concrete floor in a building leased by the defendant, as a firehouse at a nominal rental of one dollar per year. The state of demand is in two counts; the first alleges a specific contract at an agreed price of $350; and, the second is upon a book account in the same amount.
At the trial the plaintiff established that the work was done and completed in pursuance of a verbal contract between his
assignor and two members of the borough council, referred to as fire commissioners.
It is not shown, nor is our attention directed to, any authority, by statute or otherwise, for the appointment of these fire commissioners nor what statutory or other powers they possessed, except as set forth in the state of case, to which we hereafter refer.
Statutory authority for their appointment and their power does not appear to be raised or contested and, therefore, we have not considered it.
The defendant-appellant contended below, and here, that the alleged contract was not authorized by the borough and was, in fact, beyond the power of both the mayor and council and the fire commissioners because it was for repairs to property not belonging to the borough; that it was not made by authority of any ordinance or resolution; and that the borough had not ratified the contract or accepted the work.
The defendant-appellant moved for a nonsuit and later for a verdict to be directed in its favor, because --
1. There was no authority in the councilmen (evidently the two fire commissioners) to ...