Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The plaintiffs, Pressey and Watts, taxpayers of the Township of Hillsborough, initiated this proceeding on December 24, 1954 to enjoin the township and George Van Cleef, the then mayor, from entering into a contract for the purchase of a Galion Grader, and to declare invalid an authorizing motion of the township committee adopted on December 23. On January 6, 1955 the complaint was amended by adding as a party defendant George C. Gilbert, Inc., the seller of the grader. The township answered the complaint and counterclaimed against Gilbert, seeking the same relief as the taxpayers, namely, the invalidation of the contract and the return by Gilbert of an old grader which it had taken from the Township in trade as part payment for the new grader. Gilbert cross-claimed against the municipality for the purchase price. Van Cleef was later dropped as a party defendant because after December 31, 1954 he was no longer mayor.
After issue was joined, Gilbert moved for summary judgment and thereupon the parties stipulated that the entire case should be submitted and decided on affidavits presented in lieu of oral testimony. The trial court declared the contract contrary to public policy and illegal, entered judgment in favor of the Township on its counterclaim against Gilbert, and dismissed the latter's cross-suit against the township, wherefore Gilbert appeals.
During 1954 George Van Cleef was Mayor of Hillsborough. For a year or so prior thereto, and at least until October 31, 1954, he was a salesman in the employ of George C. Gilbert, Inc., which held an exclusive franchise for the sale of Galion Road Graders in central New Jersey, including Somerset County. Van Cleef, together with Richard Musa and David W. Amerman, comprised the township committee. The position of township road supervisor had been held for many years by Harold Docherty, who has had 27 years' experience in road construction and maintenance, including 16 years' experience with power graders. Early in 1954 following discussion among the committeemen there was included in the
1954 budget, and the township appropriated, $10,000 for the purchase of a new grader, but there was no decision as to its size or make. Van Cleef urged the purchase of a Galion Grader, and Musa acceded, but both Amerman and Docherty were opposed, because after investigation of various types they considered the Galion Grader as unsuitable for the Township's needs. At a meeting held on May 21, 1954 Van Cleef supported by Musa argued for Galion equipment while Amerman and Docherty still opposed it.
Some time following the May meeting Amerman "saw Mayor George Van Cleef and informed him that he George Van Cleef, could not act in our buying a grader because of his interest in the matter as an employee of George Gilbert." This statement is undenied. Nevertheless, Van Cleef persisted in urging a Galion Grader. On October 21, 1954 and subsequently he proposed to Amerman that if he "would go along with the buying of a Galion Grader" he, Van Cleef, would appoint as magistrate of the township an attorney rather than a layman, as Amerman had suggested. When Amerman refused to barter his opposition, "Mayor Van Cleef said that he was going to see to it that we buy a Galion Grader saying, 'I'll resign from Gilberts so that we can buy it'"; and "that he was getting a raw deal in respect to the purchase of the grader." Upon Amerman's continued refusal to submit to Van Cleef's proposal, he appointed a layman as magistrate. There is no denial of these accusations.
At a meeting held on December 9, 1954 Van Cleef stated "the grader is much needed and we are going to buy one" and that he would entertain a motion to that effect. Musa thereupon moved that "a $10,000 grader" be purchased. Amerman refused to second the motion, whereupon Van Cleef left the chair and seconded the motion, which was carried two to one. Another motion for the advertisement for bids for the grader was similarly seconded and carried. When Amerman said he did not understand what was to be advertised for, Van Cleef replied "we will give the specifications." The minutes made no reference to the kind of a grader to be purchased
or advertised for. However, by direction of Van Cleef an advertisement was inserted in the Somerset Star for sealed proposals for the "purchase of a Galion Model 303 Gasoline Powered Tandem Drive Motor Grader" with detailed specifications therefor. Significantly, although the resolution for the purchase did not specify a "Galion" or any kind of grader, the advertisement called for sealed bids for nothing but a "Galion Model 303."
Only one bid was submitted, that of the defendant. George C. Gilbert, Inc., which was accepted by the township committee at a meeting held on December 23, 1954 by the votes of Van Cleef and Musa, opposed by Amerman. The purchase price was $10,064, less an allowance of $200 by Gilbert for a 1938 grader owned by the township. On or about December 29 Amerman called Gilbert's place of business "and left word that he should not deliver the road grader allegedly purchased by the Township of Hillsborough and that he was not to take the 1938 grader which belonged to the Township." Notwithstanding this caution, Gilbert delivered the new grader and took the old one.
Van Cleef had been defeated for renomination in the 1954 primary election and his successor took office on January 1, 1955. On January 3, 1955, the township committee by the vote of Amerman and the new mayor rescinded the purchase of the grader because it was not in the best interest of the township and had been improperly authorized.
It is contended by Van Cleef that he resigned his employment with Gilbert on October 31, 1954, and that he was not to receive any profit or compensation by reason of the sale to the municipality. This alleged resignation, however, was not disclosed to the committeemen nor was it made public until after the institution of this suit. Indeed, Docherty in his affidavit alleges "Mayor Van Cleef never told me that he had quit the employment of George C. Gilbert, Inc. Mayor Van Cleef has so far as I can ascertain never under oath stated that he does not intend to ...