Brown, R.c., J.c.c. (temporarily assigned).
This action grows out of the sale of certain library books by the plaintiff to the Free County Library of the County of Camden.
The issues framed at the pretrial conference are sounded in both contract and in quantum meruit.
By order of the court, Thomas P. Cook, Esquire, as counsel for the New Jersey Library Association, was given leave to appear amicus curiae.
The case came on for trial before the court without a jury. The following facts developed, all of which are undisputed.
Plaintiff is a wholesale bookseller, limiting its operation to the State of New Jersey. It deals with various libraries and others throughout the State. For the past 17 years plaintiff has been supplying books to the Free County Library of the County of Camden. There has never been any public advertisement for bids by the library, the Library Commissioners or the county.
In the months of July, August, September and October of 1963, books were purchased for the County Library on various dates and in various amounts. There were in all some 14 purchases during the period for a total sum of $8,375.85. The largest order was for $970.40 on August 9, 1963, but on the same day there were four other purchases as follows: $821.20, $763.43, $439.61 and $266.76, making a total of $3,261.40 for that date. On the 19th of the same month, there were two purchases totalling $1,448.33. There were other purchases on August 21 of $327.30 and on August 29 of $564.56. Thus the total purchases for the month of August 1963 amounted to $5,601.59. It should be noted from the itemized account put in evidence that most of the items were either for single volumes or for very small quantities of the same book.
The prices charged the county by the plaintiff were identical with those being charged the New Jersey State Library at that time for like items and the discounts allowed were also the same. The county admits that all of the books were delivered by plaintiff, were accepted and used by the library and that they were fairly priced. The county further admits that, except for minor adjustments, none of the books have been returned and that it has received full benefit therefrom.
The county's refusal to pay is based upon the fact that it did not advertise for bids as required by R.S. 40:25-2. It alleges that because the total purchases for the period in question exceeded $2500, it was prohibited by law from entering into a valid agreement with plaintiff, that the acts
of its agents in purchasing the books were ultra vires and therefore null and void ab initio. Thus the county contends that plaintiff may not recover from it.
More particularly, the county states that The Camden County Library Commission, organized in accordance with N.J.S.A. 40:33-1 et seq. is an agent of the county government within the description of N.J.S.A. 40:25-2, which provides in part:
"No officer, board, commission, committee, department or other branch of any county government shall enter into any contract for the doing of any work or the furnishing of any materials, supplies or labor, or the hiring of teams or vehicles, where the sum to be expended together with any other sums expended or to be expended for the same immediate purpose and all matters relating thereto, exceeds in the aggregate the sum of $2,500.00, without first publicly advertising for bids therefor. All such contracts shall be awarded to the lowest responsible bidder who has submitted a bid in compliance with the specifications; * * *."
The county argues that although no New Jersey case has specifically held this statute applicable to a county library commission, a similar statutory provision governing municipal contracts, N.J.S.A. 40:50-1, has been held to apply to contracts made by a municipal library. ...