
    The Argus Company, Respondent, v. The Mayor, Aldermen and Commonalty of the City of Albany, Appellants.
    An entry in its book of minutes of a resolution passed by the governing or legislative body of a municipal corporation, expressing the terms of a contract within the power of said body to make on behalf of the corporation, and the signature of the clerk of said body at the end of the day’s minutes containing such resolution, constitute a note or memorandum in writing, signed by the party to be charged, within the meaning of the statute of frauds, sufficient to take the case out of the operation of that statute, and to bind the corporation, where the contract by its terms is not to be performed within a year. (Gboveb and Rapallo, JJ., dissenting.)
    Defendants’ common council, on the 26th January, 1863, passed a resolution that its proceedings be published in one daily paper, to be designated by it, for not more than $1,000, the designation to be for the term of three years; the paper designated also to publish all the city advertising at the legal rates, and all printing and binding at current rates, and the chamberlain was authorized to enter into a contract accordingly. By another resolution, plaintiffs paper, The Argus, was designated; these resolutions were entered in the book of minutes and signed by the clerk. Plaintiff accepted, and a contract was entered into for three years from January 27,1863. On the 16th- January, 1866, the common council adopted a resolution, designating- The Argus as the official paper, in accordance with its former resolution, which was also entered on the minutes and signed by the clerk. It was not adopted by ayes and nays. Plaintiff signed a written acceptance thereof, which was filed with the clerk. Held (Geover and Bafallo, JJ., dissenting), that the first resolution, as to all but the party with whom the agreement was to be made, was perpetual, unless rescinded ; that it was a full note or memorandum of the agreement, and the entry thereof in the minutes, signed by the clerk, together with the designation of some paper at the end of each term of three years, also so entered and signed, was all that was needed, on the part of the city, to take the case out of the operation of the statute of frauds; that it was not contemplated by that resolution that the chamberlain should negotiate for the publication of the proceedings at less than $1,000, but, if so, this duty was done by the first contract, which defendant, by the resolution of January 15, 1866, offered to renew; that this last resolution was not one involving an appropriation or payment of money within the provision of the act of 1848 (§ 1, chap. 139, Laws of 1848), which requires such resolutions to be passed by a call of the ayes and nays, and then entered on the minutes ; and that, upon plaintiff’s acceptance,the contract was renewed for three years, and defendant was bound thereby.
    (Argued December 23, 1873;
    decided January 20, 1874.)
    Also, held, that the fact that the rate of printing and binding was not expressed in the first resolution, but reference was made to something outside the contract, which must be established by parol proof, did not invalidate such contract, nor was a delivery of the resolution of January 15, 1866, to plaintiff, necessary to make it binding upon defendant.
    Appeal, from' judgment of the General Term of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff, entered upon the,report of a referee and granting a new trial. (Reported! he-low, 7 Lans., 264.)
    This was an action for an alleged breach of contract.
    The common council of defendants, on the 26th day of January, 1863, adopted the following resolution :
    “ Resolved, That the proceedings of this board be reported for, and published in, one daily paper,, to be designated! by the board, at an annual expense not to exceed $1,000; and that all city advertising be published, at the rates prescribed by law for the publication of legal notices, in the same paper, such designation to be for the term of three years; also, that all printing and binding chargeable to the city be done by the proprietor or proprietors of such paper for the like term, at the rates current in the city, and that the chamberlain be and he is hereby authorized and directed to enter into contract accordingly with such proprietor or proprietors as the board may designate.”
    The said resolution was adopted by a vote of two-thirds of all the members, taken by yeas and nays. On motion, the Atlas and Argus, a daily newspaper published by plaintiff, was designated “as such official paper.’-’ The resolution and motion were entered in the book of minutes, and the minutes for the day, thus entered, were signed by the clerk of the common council. In pursuance of said resolution, a contract in writing was executed on the 27th day of January, 1863, by the chamberlain on behalf of the defendants and by plaintiff, for three years from that date.
    On the 16th of January, 1866, the common council adopted the following resolution :
    “ Resolved, That The Argus be, and- hereby is, designated as the official paper, in accordance with the former resolutions of the common council, establishing an official organ for the city.”
    This resolution was not adopted by a vote taken by yeas and nays entered on the minutes, but the resolution was entered on the minutes, which were signed by the clerk of the common council. “ The Argus ” mentioned in the resolution was the newspaper published by the plaintiff. After the resolution was adopted, the plaintiff subscribed a written acceptance thereof, which was filed by it with the clerk of said common council on the 27th day of January, 1866, and no contract with defendants’ chamberlain was made. After such acceptance, the plaintiff proceeded to, and did publish the proceedings of the common council, in The Argus, and continued so to do for the space of three years thereafter. On the 4th of June, 1866, the common council passed a resolution, by its terms rescinding the resolution of January 15, 1866, and another resolution amending that of January 26, 1863, in substance striking out the clause as to publication of the proceedings, and giving the residue of the work provided for therein to other papers. After the passage of said resolutions, plaintiff served written notice on the common council, protesting against the same, claiming its paper to be the official organ, and expressing its willingness to do the work and perform its contract. Plaintiff claimed to recover the contract price for publishing the proceedings of $1,000 per annum, and the profits on the work given to other papers.
    The conclusions of law of the referee were as follows :
    That the resolution of January 26, 1863, established a permanent official organ for the defendants, to be designated every three years. That the resolution of January 16, 1866, designating The Argus as such official organ, did not involve an appropriation or expenditure of money, or require a two-thirds vote to be taken by yeas and nays, but was legally passed. That such resolution -and the acceptance thereof by plaintiff constituted a contract between plaintiff and defendants, by which plaintiff was to be the official organ for three years, and was to publish the proceedings of the common council at the rate of $1,000 per year, to do all the city advertising at the rates prescribed by law, and all printing and binding chargeable to the city at rates current in Albany, for the said term of three years, which contract would have been valid and binding, if executed as required by the statute of frauds. That said contract, not being to be performed within one year, was within the statute of frauds, and was not subscribed by the defendants, and is void (to which the plaintiff excepted). That the plaintiff is entitled to recover of the defendants the sum of $105.55 for reporting and publishing the proceedings of defendants’ common council in plaintiff’s newspaper, done after the 27th day of April, 1866, and before the 4th day of June, 1866, with interest, (to which plaintiff excepted on the ground that the amount of the recovery should be larger, viz.: §6,000).
    
      JJ. 0. Moak for the appellants.
    The resolutions under which plaintiff seeks to hold defendants did not, without resort to extrinsic evidence, fix the terms of the contract and the sums to be paid, and were not binding under the statute of frauds. (2 R. S., 135, § 2; 2 Edms. Stat., 140 ; Jones v. Hay, 52 Barb., 507, 508 ; Wright v. Weeks, 3 Bosw., 372; 25 N. Y., 153; Stocker v. Partridge, 2 Rob.; Goodman v. Griffiths, 1 Hurl. & Norm., 574.) The contract provided for in the resolution was not binding on defendants until reduced to writing and executed by the parties. (Governor, etc., v. Pitch, 10 Exch., 610; Riggs v. Magruder, 2 Cranch, 143; Add. on Con. [6th Eng. ed.], 15; Wood v. Midgeley, 5 De G., McN. & G., 41.) The passage of the resolution designating The Argus as the official paper did not make an agreement or contract with its proprietors. (Browne on Stat. of Frauds, § 354; Parker v. Packer, 1 Gray, 409 ; Sanborn v. Sanborn, 7 id., 142-144, 146; Grant v. Levan, 4 Pa. St. [4 Barr.], 393,421-426; Johnson v. Brooke, 31 Miss., 17; Robinson v. Cushman, 2 Den., 153; Jackson v. Luke, 12 Wend., 105.) The letter of acceptance filed by plaintiff with the clerk did not bind defendants. (Bailey v. Ogden, 3 J. R., 399; De Beerski v. Paige, 36 N. Y., 539; 47 Barb., 172; James v. Patten, 6 N. Y., 9.) There was no ratification of the alleged contract. (Haydock v. Stow, 40 N. Y., 370.) Part performance of an agreement void by the statute of frauds will not validate it. (Jones v. Hay, 52 Barb., 501; Lockwood v. Barnes, 3 Hill, 130 ; Bartlett v. Wheeler, 44 Barb., 162; Johnson v. Mulry, 4 Rob., 401.) If the resolution created an office, plaintiff could not hold it and it could be abolished at any time. (People v. Batchelor, 22 N. Y., 128 ; Corp. v. Mayor, 5 Cow., 538.) The resolution of January 5, 1866, was void because the yeas and nays were not entered upon the journals. (Laws 1848, chap. 139, § 1, p. 217; 
      Morris v. City of Lawrence, 98 Mass., 219, 221; Cowen v. Vill. of W. Troy, 43 Barb., 49; McSpeddon v. Mayor, 7 Bosw., 601; Donovan v. Mayor, 33 N. Y., 291; Brady v. Ballard, 55 Ill., 414.) A municipal corporation cannot ratify the acts of its officers so as to render the corporation liable. (Cowen v. Vill. of W. Troy, 43 Barb., 48.)
    
      Samuel Hcmd for the respondent.
    The contract made by the adoption of the resolution of January, 1866, was not void under the statute of frauds. (2 R. S., 185, § 2; id., 136, § 8.) It was not necessary that the memorandum of the contract should be in a single writing. (Broom on Com. Law, 383; Allen v. Bennett, 3 Taunt., 169, 178; Wright v. Weeks, 25 N. Y., 153, 160; Vassar v. Camp, 1 Kern., 441.) A written proposal, containing the terms of a projected contract, signed by defendants and assented to by plaintiff, is a compliance with the statute. (Broom on Com. Law, 384; Smith v. Neale, 8 Eng. C. L., 67; Reuss v. Picksley, L. R. [1 Exch.], 342.) The written evidence of the contract was sufficient to ascertain what the bargain was without parol proof. (Justice v. Lang, 42 N. Y., 493, 501; Hoadly v. McLaine, 10 Taunt., 482; Achcroft v. Morrin, 4 M. & Gr., 450.) The clerk of the common council was defendants’ ggent for signing these minutes. (Laws 1842, chap. 275, §. 11.) His signature as clerk of the common council was sufficient. (Dykers v. Townsend, 24 N. Y., 57; Fenly v. Stewart, 5 Sandf., 101; Chase v. City of Lowell, 7 Gray, 35.) It was not necessary to prove a formal communication of the memorandum to plaintiff. (Gibson v. Holland, L. R. [1 C. P.], 1; Hawkins v. Holmes, 1 P. Wms., 771; Smith v. Watson, Bun., 55.) Defendants had no power to annul the contract without plaintiff’s consent. (Chase v. City of Lowell, 7 Gray, 35, 36.)
   Folger, J.

The plaintiff seeks to recover upon an agreement which, by its terms, was not to be performed within one year from the making thereof. It can do so if the agreement, or some note or memorandum, is in writing and subscribed by the party to be charged thereby. (2 R. S., 135, § 2 [as amended, Laws of 1863, chap. 464, p. 802], sub. 1.)

In this case the party to be charged, and whose subscription is needed, is the defendant, a municipal corporation. It is plain that such a defendant can make no note or memorandum, nor subscribe the same, save by an officer or agent thereof. It is so, also, that it ordinarily acts by its legislative or governing body, and that the action of that body is expressed in the minutes of its- action, recorded, as it takes place, in the books kept for that purpose by its clerk or secretary. Hence it is that its agreements are rarely oral, but, pari pass u with the making of them, they are on the instant of formation put into writing, and thus a note or memoran.dum of them is made; and the minutes of the day’s doings of the body, being signed by the clerk thereof, there is a subscription of the note or memorandum, made by the party, by its agent duly authorized. This is a satisfactory compliance with the statute. It meets the purpose and intention of the law, by providing an enduring and unchanging evidence of the agreement; and it meets its letter, for there is some note or memorandum of it in writing, subscribed by the party to be charged thereby, the subscription made by an authorized agent. And so are the authorities. (Johnson v. Trinity Ch. Society, 11 Allen, 123; Tufts v. Plymouth Gold Mining Co., 14 id., 407; Chase v. City of Lowell, 7 Gray, 35; Dykers v. Townsend, 24 N, Y., 57.)

The resolution of the 26th January, 1863, is a full note or memorandum of an agreement as to the work which the defendant agreed to have done. Nor did this resolution expire by any limitation of its own, at the end of three years from its adoption, and so require a new passage to be still operative. Until rescinded in terms, it was lasting in its expression of a determination by the city to have its printing done at certain rates, by one daily paper to be designated by the city. It was this designation, only, which had a limit to a term of three years. The resolution, as to all but the party with whom the agreement was to be, was perpetual, unless rescinded by action of the city; and it needed nothing but the designation of some daily paper, at the end of each term of three years, entered upon the daily minutes, signed by the clerk, to do all which the city need do, to make a note or memorandum in writing, subscribed by the party to be charged thereby.

The resolution of 15th January, 1866, also recorded in the minutes and signed by the clerk, designating anew the plaintiff’s daily paper, started another term of three years. For the agreement was already there, save the name of the party to be agreed with, and that this resolution supplied.

Eor did this last resolution need to be passed with a call of the ayes and nays, and they entered upon the record. It was not a law or á resolution involving an appropriation or payment of money for any purpose. (Laws of 1848, chap. 139, p. 217, § 1.) The purpose was decided upon by the former resolution. The design of the provision of the act of 1848, is to expose to accountability to the public, those who in places of public trust, sanction new objects and purposes for expenditure of public money. An expenditure having been once determined upon, it does not again involve it, that by resolution one is selected to do the work, any more than where an office under the city government, having been created by resolution and a compensation having been attached to it, by a subsequent resolution one is named to fill it.

Eor does the resolution contemplate that the chamberlain is to negotiate for the publication of the proceedings of the board at a sum less than $1,000. It is a proposal—in connection with the other resolution, designating the plaintiff’s paper as the official organ—to the plaintiff, to pay it not to exceed $1,000 for doing certain work; the plaintiff’s answer is an acceptance of that sum and an agreement to do the work therefor. It is different from Haydock v. Stow (40 N. Y., 364). That was a power intrusted to an agent, with a minimum limit of price, but no maximum / and hence the duty of the agent to his principal to obtain more if he might. This is an offer by • one party to another, which the other accepts without intervention of an agent, and the maximvm compensation named is the compensation agreed for. Besides, the direction to the chamberlain does not contemplate any change of the terms of the resolution; he is directed to enter into a contract accordingly, i. e., in the terms specified in the resolution. Moreover, before the second resolution of designation, he has already done his duty in making the contract, with which the defendant is satisfied. The second resolution, of January 16, 1866, is an offer by the defendant to renew it for another term of three years ; and so the defendant does not remain free from obligation, under that resolution, until the chamberlain has' again entered into a contract. The contract which he was directed to make, expressing no more in fact than the resolution of 1863, was satisfactory to the defendant. The defendant, agreeing to the terms of that resolution and contract, by the resolution again designating the daily paper of the plaintiff, proposed to it to renew the same for another term of three years. As soon as the plaintiff signified in writing its acceptance of that proposal, the contract was renewed for another three years’ term, and, as we have seen, was legally embodied in writing, and was subscribed according to the statute. A letter from a party to be charged, specifying the terms of an agreement, and directing an assignment to be drawn in accordance with it, is a good memorandum of the contract, though the assignment never be made. (See Smith v. Watson, cited in Gibson v. Holland, Law Rep. [1 Com. PL], 6.) The common council did not contemplate not being bound, until a contract other than the resolutions and some acceptance of it was made. Those cases which have turned on such point, have been where a further contract was needed to express the details of the bargain, where those had yet to be arranged between the parties.

Eor does the fact that the rates for printing and binding are not expressed, but reference is made to something outside of' the contract, and which must be established by parol testimony, invalidate the contract. This contract is not so much open to objection for this cause, as if no price was expressed, nor reference made to anything by which it might be determined, and the parties were left to proof of a qucmtum meruit. Tet, in such case, a memorandum has been held to be in compliance with the statute. (Hoadly v. McLaine, 10 Bing., 482; Ashcroft v. Morrin, 4 M. & G., 450.) The first resolution does not require that the chamberlain ascertain what the current rates are, when he enters into his contract, and make them the rule of compensation the three years through, What he is to do, if he does aught, is to put into his contract the phrase of the resolution. For the designation and the contract is for three years; and the rates current at the beginning of .the term, may be quite different from those current in any other part thereof. Tet it is for the rates current in the city,- at any time and at all times through the term of three years, that the defendant contracts, willing to pay its designated official paper so much and no more, and asking work for no less than at the terms current for the same service, in the city where the work is done, from time to time.

hi or is the idea that there was no delivery to the plaintiff of the resolution of 1866, one that can prevail. There had once been delivery of the same agreement and performance of it by both parties. It was not changed. The resolution of 1866 was but a proposal to the plaintiff to renew it. It was adopted 16th January, 1866. The first term of three years did not end until 26th January, 1866. Until that day, under the first contract, all proceedings of the common council were reported for, delivered to, and published in, the paper of the plaintiff. The resolution of January, 1866, at once on its passage, was reported for and delivered to the plaintiff, to the knowledge of the defendant’s agents. ISTor is it always needed that there be delivery to the other contracting party, to bind the one who is sought to be charged by the note or memorandum. Where one, by his agent, has dealt with Another, a written communication to the agent, reciting the terms of the agreement made by the agent with that other, and ratifying the same, will answer the statute. (Gibson v. Holland, supra) And so will a written communication to the other, expressive of the terms, yet repudiating an obligation. (Bailey v. Sweeting, 9 C. B. [N. S.], 843.) The plaintiff did accept the proposal for a renewal, by filing its written acceptance with the clerk of defendant. The clerk had no authority to make a contract or to assent to a proposition for one. But he was the custodian of the papers of the common council, and an organ of communication between it and those not members of it. It also accepted it, by acting under it to the knowledge and with the assent of defendant’s agents. (Smith v. Neale, 2 C. B. [N. S.], 66.)

The plaintiff has a good cause of action on the contract; but for the reason given by the General Term, it was proper that there should be a new trial, rather than judgment absolute ordered in that court. But there being a stipulation undei* the eleventh section of the Code, on appeal to this court, the order of the General Term should be affirmed, and judgment absolute for the plaintiff.

All concur, except Grover and Bapallo, JJ., dissenting.

Order reversed,, and judgment accordingly.  