Opinion by
Willard, J.,
The appellee brought his action in the court below against the borough of South Williamsport, and set.forth in his statement of claim his right to recover the sum of $400, by virtue of a contract in writing between himself and the authorities of the borough of South Williamsport, and twenty-eight dollars and twelve cents ($28.12) for extra work. Unfortunately the contract .declared upon, as well as many of the resolutions of the council, connected therewith, appear to have been lost or stolen (the resolution never having been recorded) while in the possession of the clerk of the borough, who occupied the double position of borough clerk and borough treasurer. The explanation made by this officer of the loss of these papers may have appeared to the court below entirely satisfactory, but on a careful review of the record we think the practice indulged in by the authorities of the borough in intrusting the important papers involved in this ease to a party too closely identified with the appellee was at least reprehensible, and in our opinion calls for the closest scrutiny of every transaction connected with this contract. As to the number of streets to which this contract applied, there was sufficient uncertainty to warrant the court in submitting that question to the jury, and in view of the contradictory testimony, the vague and uncertain character of the bid submitted, it was proper also to submit the question of price for the consideration of the jury. But in submitting these questions the court coupled them with another question involved in the controversy, concerning which there was not a shadow of doubt. When in the course of the trial it became necessary to ascertain what the real contract was, the person who drew the same under the direction of the highway committee testified, viz:
Q. Over what form did you draw that contract? A. I drew it over a form that Mr. Whitehead had drawn before for the paving of Southern avenue.
(Contract dated October 1, 1892, between the borough of [401]*401South Williamsport and Charles Fisher, marked Plaintiffs’ Exhibit 1, shown witness.)
Q. Is this the contract you have referred to as drawn by Mr. Whitehead and over which you drew the contract of 1893 with Charles Fisher ? .A. Yes, sir. This is the one. Q. Was the contract which you drew exactly like this contract ? A. No, sir. Q. State in what it differed ? A. It differed in this, it was for the paving to be done on Southern avenue, and the paving in 1898, and it was to be 95e. a yard.
Again the same witness testified on cross-examination: “ I drew it for the highway committee over this copy of Mr. Whitehead’s according to their instruction, and that was that I should copy right after this that I have in my hand- here. I don’t know whether I drew it over that resolution or not, but I know I drew it over this, and what this contains that contains, with a couple of insertions.”
William Bastían, another witness, testified, viz: Q. Tell what the contract was? A. The contract was just the same as the one Mr. Whitehead had drawn up for the other side of the street, with the exception we were to pay him 95c. instead of 75c. from Curtin street to Culvert at the coal office on Southern avenue, the North side.
The contract of October 31, 1892, provided, among other things, viz: “ Measurement to be surface measure after the work is finished and completed, and to include curbing, paving, stoning bottom of gutter, etc. The measuring to be done by H. C. Reeder, engineer, and payments to be made on said engineer’s measurements.”
The undisputed testimony of every witness sworn and every paper put in evidence left no question as to how the measurement was to be made. This contract was read to the council of the borough of South Williamsport in the presence of Fisher, the appellee, and as it was alleged, approved by the action of the borough council. There was no uncertainty as to the manner of measurement of the work performed by Mr. Fisher, and there is not a particle of testimony disclosed in this record by which that understanding and solemn agreement was ever changed, or varied one iota. Upon this contract the appellee brought his action, and obtained a verdict for the full amount of his claim, when according to the testimony orders had been issued [402]*402to him for six hundred and twenty-five yards at 95c. per yard, amounting to $593.75 in excess of what he was entitled to under the terms of his contract. The testimony of Mr. H. C. Reeder upon this subject is as follows, viz:
“ I had instructions to measure the cobble paving, surface measurement, and the curbing measured as eighteen inches in depth, and we figured as so much pavement at that width.”
Q. What would have been the difference between the measurements as you made them there and if you would have measured the whole thing at surface measure ? A. It would have made a difference, I should judge, of about twenty per cent. Q. What would have been the total difference ? A. Seven hundred and seventeen yards. Q. That is, according to your measurements, Mr. Fisher has received credit for seven hundred and seventeen yards more than he would have received if the measurements had been taken at surface measure ? A. Well—it would have been a little less than that—the top surface of the dirt— Q. Well, that is about it ? A. Well, I suppose may be six hundred and twenty-five yards. Q. Six hundred and twenty-five yards more ? A. The curb measured about three inches in thickness. On redirect examination the witness further testified, viz: Q. Who gave you instructions as to this measurement and how you were to measure this ? A. The highway committee, they were with me. Q. Did you have the contract there between Fisher and the borough ? A. No. They told me that was the understanding between them and Fisher. Q. That was the contract between them and Fisher? A. Yes, sir.
By Mr. Whitehead : No, he didn’t say that that was the contract.
By Mr. Ritter: Well, what was it ? A. The understanding; because the curbing extended into the ground, and they were to allow him eighteen inches in depth. That is, for every running foot of gutter one and one-half square feet of paving, which would amount to about sixteen cents a foot for the curbing at a price of ninety-five cents a yard. Q. You made the measurement according to the instructions of the highway committee? A. Yes, sir.
This contract, it must be borne in mind, was made between the borough council of South Williamsport and Charles Fisher, by virtue of a resolution of the council. There was no power [403]*403in the engineer or the highway committee to change or modify that contract. It could only be so changed and modified by. another resolution or ordinance of the council which it is not pretended was ever passed. The action of the committee in directing a measurement by the engineer different from the mode prescribed in the contract was unauthorized, and if it reduced the price of the contract, it was detrimental to Charles Fisher, while if it raised the price of the contract, it was to the prejudice of the borough and every taxpayer thereof, and as the evidence shows this unauthorized act was to the detriment of the borough of South Williamsport in the sum of at least five hundred and ninety-three dollars and seventy-five cents ($593.75), the jury should have been so instructed.
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Opinion by
Willard, J.,
The appellee brought his action in the court below against the borough of South Williamsport, and set.forth in his statement of claim his right to recover the sum of $400, by virtue of a contract in writing between himself and the authorities of the borough of South Williamsport, and twenty-eight dollars and twelve cents ($28.12) for extra work. Unfortunately the contract .declared upon, as well as many of the resolutions of the council, connected therewith, appear to have been lost or stolen (the resolution never having been recorded) while in the possession of the clerk of the borough, who occupied the double position of borough clerk and borough treasurer. The explanation made by this officer of the loss of these papers may have appeared to the court below entirely satisfactory, but on a careful review of the record we think the practice indulged in by the authorities of the borough in intrusting the important papers involved in this ease to a party too closely identified with the appellee was at least reprehensible, and in our opinion calls for the closest scrutiny of every transaction connected with this contract. As to the number of streets to which this contract applied, there was sufficient uncertainty to warrant the court in submitting that question to the jury, and in view of the contradictory testimony, the vague and uncertain character of the bid submitted, it was proper also to submit the question of price for the consideration of the jury. But in submitting these questions the court coupled them with another question involved in the controversy, concerning which there was not a shadow of doubt. When in the course of the trial it became necessary to ascertain what the real contract was, the person who drew the same under the direction of the highway committee testified, viz:
Q. Over what form did you draw that contract? A. I drew it over a form that Mr. Whitehead had drawn before for the paving of Southern avenue.
(Contract dated October 1, 1892, between the borough of [401]*401South Williamsport and Charles Fisher, marked Plaintiffs’ Exhibit 1, shown witness.)
Q. Is this the contract you have referred to as drawn by Mr. Whitehead and over which you drew the contract of 1893 with Charles Fisher ? .A. Yes, sir. This is the one. Q. Was the contract which you drew exactly like this contract ? A. No, sir. Q. State in what it differed ? A. It differed in this, it was for the paving to be done on Southern avenue, and the paving in 1898, and it was to be 95e. a yard.
Again the same witness testified on cross-examination: “ I drew it for the highway committee over this copy of Mr. Whitehead’s according to their instruction, and that was that I should copy right after this that I have in my hand- here. I don’t know whether I drew it over that resolution or not, but I know I drew it over this, and what this contains that contains, with a couple of insertions.”
William Bastían, another witness, testified, viz: Q. Tell what the contract was? A. The contract was just the same as the one Mr. Whitehead had drawn up for the other side of the street, with the exception we were to pay him 95c. instead of 75c. from Curtin street to Culvert at the coal office on Southern avenue, the North side.
The contract of October 31, 1892, provided, among other things, viz: “ Measurement to be surface measure after the work is finished and completed, and to include curbing, paving, stoning bottom of gutter, etc. The measuring to be done by H. C. Reeder, engineer, and payments to be made on said engineer’s measurements.”
The undisputed testimony of every witness sworn and every paper put in evidence left no question as to how the measurement was to be made. This contract was read to the council of the borough of South Williamsport in the presence of Fisher, the appellee, and as it was alleged, approved by the action of the borough council. There was no uncertainty as to the manner of measurement of the work performed by Mr. Fisher, and there is not a particle of testimony disclosed in this record by which that understanding and solemn agreement was ever changed, or varied one iota. Upon this contract the appellee brought his action, and obtained a verdict for the full amount of his claim, when according to the testimony orders had been issued [402]*402to him for six hundred and twenty-five yards at 95c. per yard, amounting to $593.75 in excess of what he was entitled to under the terms of his contract. The testimony of Mr. H. C. Reeder upon this subject is as follows, viz:
“ I had instructions to measure the cobble paving, surface measurement, and the curbing measured as eighteen inches in depth, and we figured as so much pavement at that width.”
Q. What would have been the difference between the measurements as you made them there and if you would have measured the whole thing at surface measure ? A. It would have made a difference, I should judge, of about twenty per cent. Q. What would have been the total difference ? A. Seven hundred and seventeen yards. Q. That is, according to your measurements, Mr. Fisher has received credit for seven hundred and seventeen yards more than he would have received if the measurements had been taken at surface measure ? A. Well—it would have been a little less than that—the top surface of the dirt— Q. Well, that is about it ? A. Well, I suppose may be six hundred and twenty-five yards. Q. Six hundred and twenty-five yards more ? A. The curb measured about three inches in thickness. On redirect examination the witness further testified, viz: Q. Who gave you instructions as to this measurement and how you were to measure this ? A. The highway committee, they were with me. Q. Did you have the contract there between Fisher and the borough ? A. No. They told me that was the understanding between them and Fisher. Q. That was the contract between them and Fisher? A. Yes, sir.
By Mr. Whitehead : No, he didn’t say that that was the contract.
By Mr. Ritter: Well, what was it ? A. The understanding; because the curbing extended into the ground, and they were to allow him eighteen inches in depth. That is, for every running foot of gutter one and one-half square feet of paving, which would amount to about sixteen cents a foot for the curbing at a price of ninety-five cents a yard. Q. You made the measurement according to the instructions of the highway committee? A. Yes, sir.
This contract, it must be borne in mind, was made between the borough council of South Williamsport and Charles Fisher, by virtue of a resolution of the council. There was no power [403]*403in the engineer or the highway committee to change or modify that contract. It could only be so changed and modified by. another resolution or ordinance of the council which it is not pretended was ever passed. The action of the committee in directing a measurement by the engineer different from the mode prescribed in the contract was unauthorized, and if it reduced the price of the contract, it was detrimental to Charles Fisher, while if it raised the price of the contract, it was to the prejudice of the borough and every taxpayer thereof, and as the evidence shows this unauthorized act was to the detriment of the borough of South Williamsport in the sum of at least five hundred and ninety-three dollars and seventy-five cents ($593.75), the jury should have been so instructed. They were not so instructed, but were allowed to render a verdict for the full amount of the plaintiff’s claim under the undisputed testimony that orders had been issued to him by the borough officers in excess of the amount to which he was honestly entitled under the express terms of his contract, which excess amounted to $593.75. The fact that the city engineer measured the work under the direction of the highway committee does not change the law governing this case.- It is true Fisher was to be paid on the measurement of the city engineer, but the contract specified how he was to make the measurement, and Fisher knew it.
“ This estimate of the engineer was conclusive only on the condition that it was made in accordance with the terms of the contract, and it was not in his power to change the contract so as to allow either a greater or a less rate of compensation than was plainly agreed upon : ” Drhew v. Altoona, 121 Pa. 401.
Nor does the fact that the borough officers issued orders to Fisher to the amount of the measurement made by the engineer change the rights of the parties. This action is upon a contract, and upon the terms of that contract this case rests and should have been disposed of as above indicated. When in the court below it was attempted to prove some other mode of measurement than that provided in the written contract, the court excluded the evidence with the following pertinent remarks “ It is either in that contract or it is not. We have to construe it according to that contract. You have proven your contract. If this is settled in that contract, this evidence is wholly immaterial ; if it is not settled in that contract it is not evidence, [404]*404because that contract is what we have got to go by. You have shown the terms of it. You have proven it partly in writing, because you have put in evidence another contract, and the evidence is that with the exception of two changes, and the changes are pointed out, the contract with Fisher is precisely like it; and you have also put in evidence the bid as part of the contract, and you cannot go all over the ground again with ‘understandings.’ That won’t do.”
Had the court adhered to this ruling and not coupled this certainty as to the measurement with the uncertain questions of price and the number of streets, many of the assignments of error could not be sustained. But as the case was submitted the 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th and 19th assignments of error are sustained. We think, however, the case should be sent back to the court below for another trial. It is now well settled in Pennsylvania, that where an ordinance or resolution is actually passed by the legislative branch of a municipal corporation, and through inadvertence or mistake such resolution or ordinance is not recorded upon the minutes, the fact of the passage of such resolution or ordinance may be proved by the testimony of those present at the meeting: Bohan v. Avoca Borough, 154 Pa. 404; Gearhart v. Dixon, 1 Pa. 224; School District v. McBride, 22 Pa. 215; Furniture Company v. School District, 158 Pa. 35; Roland v. School District, 161 Pa. 102; Harmony Building Asso. v. Goldbeck, 13 W. N. C. 24.
The first assignment of error is therefore overruled.
As the. error complained of in the second assignment pertained to the admission of testimony as to the price per yard, the evidence was properly admitted and the assignment is overruled.
What possible bearing upon the issue the payment of inters est upon the orders issued by the borough officers to Charles Fisher may have had we cannot understand, and the evidence on that question should have been promptly rejected. The third and fourth assignments of error are sustained.
The fifth assignment of error is also sustained for the reason that the action of the auditors of the borough or their report had no possible bearing upon the questions involved. The testimony was irrelevant and improperly admitted.
[405]*405We think the testimony of James McGraw on the question of extra work should have been admitted, and the court erred in excluding the same; the sixth assignment of error is therefore sustained.
The judgment is reversed and a venire facias de novo awarded.