On appeal from the Bergen County Circuit Court.
For the appellant, Harry Lane (Robet Carey and Donald M. Waesche, on the brief).
For the respondent, John J. Breslin, Jr. (Edward O. West and James A. Major, on the brief).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The city of Hackensack, defendant below, appeals from a judgment entered against it in the Bergen County Circuit Court in favor of the plaintiff, for engineering services, in the sum of $21,777.12.
The complaint, in nine counts, alleges services rendered by the plaintiff, under contract, express and implied, with the defendant municipality, on certain public improvements that were subsequently abandoned or at least not undertaken. Three of the counts, embodying claims based upon quantum meruit, were relinquished at the trial, leaving the six which are founded on express contract between the parties.
The defendant, in answer, denied the contract asserted by the plaintiff and counter-claimed, charging plaintiff was overpaid for services rendered as to two certain public improvements done under his supervision.
The plaintiff's averment is that he was, by resolution of the governing body, appointed city engineer of Hackensack on January 1st, 1925, and served continuously until January,
1932, pursuant to an express agreement that as compensation he was to receive ten per cent. of the cost of public improvements made by the city. His service for this compensation included preparation of plans and specifications, profiles and grade maps, supervision and inspection of the work. Apparently, several contracts were completed under his direction and for these he has been paid ten per cent. of the cost thereof for his services; indeed, as the defendant in its counter-claim averred, his compensation exceeded that percentage of the cost. That, however, is not important at the moment.
The complaint further alleges that the agreement between the parties provided that in the event that plans and specifications were prepared by the plaintiff, but the contemplated work not undertaken, he was none the less to be paid two and one-half per cent. of the estimated cost of such work; that from time to time he did prepare plans, specifications, maps and the like, for proposed public improvements which were not undertaken and therefore, under the agreement, became entitled to two and one-half per cent. of the estimated or bid price of such work. The defendant denied that there was any agreement to pay the plaintiff for preliminary work done in anticipation of public improvements which were not undertaken. The official minutes of the defendant municipality contain no record of a resolution that supports the assertion of the plaintiff that he was retained as engineer on these terms. The plaintiff produced witnesses who testified that notwithstanding the silence of the municipal minutes on the matter such municipal action was taken and the question for determination is whether the official minutes of a municipality may be altered or, to state it more accurately, supplemented by parol evidence.
The trial court was of the opinion that parol evidence was competent to accomplish this purpose and, denying a motion for nonsuit, submitted the matter to the jury. In so doing, the court fell into reversible error.
As a general proposition, a municipality becomes bound either by formal, preliminary act authorizing a thing to be done or, in the absence of such ...