(Essex Co. Circuit Court, Feb. 3, 1922).

Compensation for Road Labor Performed Under County Contract—Ultra Vires Resolution

Case of The Osborne & Marsellis Company against County of Essex.

Messrs. Edwin B. and Philip Goodell for Plaintiff.

Mr. Arthur T. Vanderbilt for Defendant.

DUNGAN, J.: This is a suit brought by Osborne & Marsellis Company against the County of Essex to recover compensation for labor performed and materials furnished in the improvement of a part of Franklin avenue, a county road in the county of Essex, prior to the allowance of a writ of certiorari to review the legality of the contract under which the work was done, which contract was set aside by the Supreme Court, and the decision of that Court was affirmed by the Court of Errors and Appeals. Chamber of Commerce v. County of Essex, 114 Atl. 426.

The case is submitted upon a statement of the case and stipulation of facts for judgment, without pleadings; the parties agreeing that the issues be submitted to this Court for decision, without trial by jury, and that “No appeal will be taken from the judgment entered on his findings.”

From the agreed statement of fact it appears that there was no irregularity on the part of Osborne & Marsellis in the bid, in the awarding of the contract, or in the execution of the contract, which was approved as to form by the county counsel, and a bond was furnished which was also approved, both in accordance with the resolution of the Board awarding the contract. It also appears that, after the adoption of the resolution awarding the contract, the plaintiff commenced the work and performed work and furnished materials, the value of which, at the unit prices fixed by the contract, amounted to $18,562.80, all of which labor and materials were performed and furnished prior to the allowance of the writ and prior to notice that application would be made for the writ, “except such work as was necessary to leave the unfinished road in condition as required by law.”

The grounds upon which the contract was set aside appear fully in the case of Chamber of Commerce v. County of Essex, 114 Atl. 426.

Two defenses to the plaintiff’s claim are urged: First, that the contract was not signed by the director of the Board of Freeholders; and, second, that the resolution constituted an ultra vires act of the Board of Freeholders and that there can be no recovery upon quantum meruit where the act is ultra vires.