The opinion of the court was delivered, January 3d 1871, by
Williams, J.
— This action was brought by the plaintiffs below, against 'the county of Jefferson, to recover the price of bricks which they delivered to build the court-house in the borough of Brookville in said county. It appeared from the evidence given on the trial that the commissioners entered into a written agreement with James T. Dickey for the erection of the court-house, by which he agreed to furnish the materials and do the work for the sum of ’$57,600; and that Dickey entered into a written contract with the plaintiffs, by which they.agreed to make 300,000 bricks at $7.50 per thousand, and have them ready at the times stipulated in the agreement; that after they had delivered to him 25,000 or 30,000, they refused to deliver any more because of his failure to pay for them according to the terms of the contract; and that afterwards they delivered the bricks in controversy at the request of two of the commissioners, but whether upon their express promise to pay for them or not, was the matter of dispute between the parties, and in regard to which the evidence was conflicting. The jury, under the instructions of the court, found that the bricks were delivered on the promise of the commissioners to pay for them, and returned a verdict for the plaintiffs, upon which judgment was entered by the court below.
The assignments of error embrace the exceptions taken by the defendant, on the trial, to the rulings of. the court in the rejection of evidence, and to the instructions given to the jury in answer to points submitted on both sides.
The first question presented by the specifications of error which we shall consider — though not the first in the order of the assignments — is, whether the two commissioners had power to bind the county by their promise to pay for .the bricks, which the plaintiffs delivered at their request? This is the main question in the case; and it arises on the answers of the court to the plaintiffs’ 2d and the defendant’s 1st point. The plaintiffs requested the court to instruct the jury, that if two of the commissioners, in order to obtain the bricks to finish the court-house, went to the yard and promised the plaintiffs that if the bricks were delivered at the court-house they would pay for them, and the bricks were delivered on the strength of this promise, the county would be bound by their agreement for the amount of bricks, delivered after and in pursuance of such promise. The court answered this point in the affirmative, if the two commissioners went to the brickyard and made the contract, or assumed the payment of the bricks [208] as commissioners, and not as individuals. If they did, and plaintiffs relying on such assumption by them as such, delivered the bricks, they may recover. The defendant, on the other hand, requested the court to charge that there is no such action shown by the hoard of commissioners as would bind the county. That, admitting that there was an assumption by the two commissioners at the brick-kiln, it would avail the plaintiffs nothing, as they were not acting as a hoard of commissioners, and could, not hind the county. The court declined to answer this point as requested, and added that the two commissioners “may have been acting for the county in visiting the brick-yard in the same way and as much as they were while looking after the county bridge at Troy. If the assumption was made by the county, and the bricks were delivered on the faith and credit of the county, and the commissioners there, on the ground, pledged the county for the payment of the bricks, the plaintiffs may recover. If the commissioners pledged themselves, and not the county, in payment, we answer this point in the affirmative.” Did the court then err in the answer which it gave to either of the points ? The commissioners are the public agents of the county, and the law expressly provides that two of them shall form a board for the transaction of business, and when convened in pursuance of notice, or according to adjournment, shall be competent to perform all and singular the duties appertaining to their office. It is true, that they are required to keep their offices at the seat of justice of the respective counties, but it does not follow that they cannot make a valid and binding contract on behalf of the county, unless they make it in the office which, they are required to keep — if such contract is in other respects within the scope of their “authority. Nor has it been the practice of the commissioners to make contracts in behalf of the county only in “ the commissioners’ office.” They have been in the habit of making contracts wherever it best suited their own convenience and the exigency of the public business. Why, then, should the validity of contracts, so made, be questioned or denied ? If made within the scope of their authority, and without any fraud or collusion on their part, why should they not he valid and binding on the county whenever made ? The statute does not declare contracts made out of “ the commissioners’ office” illegal, and there is no rule or principle of the common law which renders them void. The contract in this case was within the scope of the commissioners’ authority, and, under the provisions of the statute, the two commissioners had power to make it — and if they made the contract in their capacity as commissioners, as the jury have found, it is binding on the county, if it is not within the Statute of Frauds, which is the next question to be considered.
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The opinion of the court was delivered, January 3d 1871, by
Williams, J.
— This action was brought by the plaintiffs below, against 'the county of Jefferson, to recover the price of bricks which they delivered to build the court-house in the borough of Brookville in said county. It appeared from the evidence given on the trial that the commissioners entered into a written agreement with James T. Dickey for the erection of the court-house, by which he agreed to furnish the materials and do the work for the sum of ’$57,600; and that Dickey entered into a written contract with the plaintiffs, by which they.agreed to make 300,000 bricks at $7.50 per thousand, and have them ready at the times stipulated in the agreement; that after they had delivered to him 25,000 or 30,000, they refused to deliver any more because of his failure to pay for them according to the terms of the contract; and that afterwards they delivered the bricks in controversy at the request of two of the commissioners, but whether upon their express promise to pay for them or not, was the matter of dispute between the parties, and in regard to which the evidence was conflicting. The jury, under the instructions of the court, found that the bricks were delivered on the promise of the commissioners to pay for them, and returned a verdict for the plaintiffs, upon which judgment was entered by the court below.
The assignments of error embrace the exceptions taken by the defendant, on the trial, to the rulings of. the court in the rejection of evidence, and to the instructions given to the jury in answer to points submitted on both sides.
The first question presented by the specifications of error which we shall consider — though not the first in the order of the assignments — is, whether the two commissioners had power to bind the county by their promise to pay for .the bricks, which the plaintiffs delivered at their request? This is the main question in the case; and it arises on the answers of the court to the plaintiffs’ 2d and the defendant’s 1st point. The plaintiffs requested the court to instruct the jury, that if two of the commissioners, in order to obtain the bricks to finish the court-house, went to the yard and promised the plaintiffs that if the bricks were delivered at the court-house they would pay for them, and the bricks were delivered on the strength of this promise, the county would be bound by their agreement for the amount of bricks, delivered after and in pursuance of such promise. The court answered this point in the affirmative, if the two commissioners went to the brickyard and made the contract, or assumed the payment of the bricks [208] as commissioners, and not as individuals. If they did, and plaintiffs relying on such assumption by them as such, delivered the bricks, they may recover. The defendant, on the other hand, requested the court to charge that there is no such action shown by the hoard of commissioners as would bind the county. That, admitting that there was an assumption by the two commissioners at the brick-kiln, it would avail the plaintiffs nothing, as they were not acting as a hoard of commissioners, and could, not hind the county. The court declined to answer this point as requested, and added that the two commissioners “may have been acting for the county in visiting the brick-yard in the same way and as much as they were while looking after the county bridge at Troy. If the assumption was made by the county, and the bricks were delivered on the faith and credit of the county, and the commissioners there, on the ground, pledged the county for the payment of the bricks, the plaintiffs may recover. If the commissioners pledged themselves, and not the county, in payment, we answer this point in the affirmative.” Did the court then err in the answer which it gave to either of the points ? The commissioners are the public agents of the county, and the law expressly provides that two of them shall form a board for the transaction of business, and when convened in pursuance of notice, or according to adjournment, shall be competent to perform all and singular the duties appertaining to their office. It is true, that they are required to keep their offices at the seat of justice of the respective counties, but it does not follow that they cannot make a valid and binding contract on behalf of the county, unless they make it in the office which, they are required to keep — if such contract is in other respects within the scope of their “authority. Nor has it been the practice of the commissioners to make contracts in behalf of the county only in “ the commissioners’ office.” They have been in the habit of making contracts wherever it best suited their own convenience and the exigency of the public business. Why, then, should the validity of contracts, so made, be questioned or denied ? If made within the scope of their authority, and without any fraud or collusion on their part, why should they not he valid and binding on the county whenever made ? The statute does not declare contracts made out of “ the commissioners’ office” illegal, and there is no rule or principle of the common law which renders them void. The contract in this case was within the scope of the commissioners’ authority, and, under the provisions of the statute, the two commissioners had power to make it — and if they made the contract in their capacity as commissioners, as the jury have found, it is binding on the county, if it is not within the Statute of Frauds, which is the next question to be considered.
The court was requested in defendant’s 2d point to charge that [209] the Statute of Frauds bars the plaintiffs’ claim. The court answered this point in the negative, and assigned, in substance, as a reason therefor, that if the county made the assumption at all, it was to secure the bricks for the court-house which the commissioners were authorized to build; and if the commissioners contracted to pay for the bricks in the place of the builder, they might do so, and the contract was for the benefit of the county. Did the court err in refusing the defendant’s point ? The contract as averred in the declaration and as found by the jury under the evidence, was not a contract to answer for the debt or default of the contractor, but a direct promise, or agreement, on the part of the commissioners, to pay for the bricks in consideration of which the plaintiffs agreed to deliver them. It needs no' argument to show that such a contract is not within the Statute of Frauds. The plaintiffs did not deliver the bricks under their agreement with Dickey, but on the promise or contract of the commissioners to pay for them. The debt, contracted by them for the bricks, was, therefore, as much a debt of the county as if the plaintiffs had made no.agreement with Dickey for their delivery — but had contracted with the commissioners in the first instance. The 6th specification of error was abandoned on the argument, and there is nothing in it which requires any special notice at our hands. The remaining assignments relate to the rulings of the court in rejecting the defendant’s offers of evidence. It was admitted that the defendant was allowed to prove so much of his first offer as showed that the assumption by the commissioners was only conditional. Eut the complaint is that the defendant was not allowed to show that the commissioners paid Dickey, after the alleged arrangement, the sum of $5900; and that in the following November or December they had paid out all the money, and more than was due him; that he refused to go on with the contract for building the court-house, and the commissioners relet the contract to Nicholson & English for $21,742. We are of the opinion that the court rightly rejected these offers. They were not relevant to the issue, for they did not tend to show that the commissioners did not promise to pay the plaintiffs for the bricks in controversy, nor to rebut any evidence given by them.
The question whether the commissioners promised, on behalf of the county, to pay for the bricks, and whether .the plaintiffs delivered them in consideration of their promise, was fairly submitted by the court to the jury, and as we discover no error in the record, the judgment must be affirmed.
Judgment affirmed.