
    Egbert Shoemaker, Plaintiff, v. The Buffalo Steam Roller Company et al., Defendants.
    (Supreme Court, Stueben Equity Term,
    December, 1913.)
    Taxpayer’s action — individual liability of town officials in action to have refunded to a town amount paid to conditional vendor for use of machine on its highways — when costs granted.
    A conditional contract for the purchase of a steam roller for a town providing for annual payments of more than $500 each made without submission of the matter to a vote at a town meeting is illegal and void. •
    
      The vendor, however, is legally and equitably entitled to retain money paid under such contract, which was a fair and reasonable price for the use of the machine for the number of days the town actually used it on its highways, and said money will be offset against the claim of the plaintiff in a taxpayer’s action that it be refunded to the town.
    The town officials having acted in good faith will not be held either individually or collectively liable in a taxpayer’s action to refund to the town any part of the amount paid to the conditional vendor for the use of the machine, and the complaint as to each of said officials will be dismissed, without costs.
    Plaintiff in a taxpayer’s action having succeeded in having the contract adjudged void will be granted costs against the conditional vendor.
    Taxpayer’s action to set aside a contract between the town of Campbell and the Buffalo Steam Roller Company, made on the 21st day of February, 1910, and to recover back moneys paid thereunder.
    James O. Sebring, for plaintiff.
    Edward R. O’Malley, for defendant Roller Company.
    W. J. & G. W. Cheney, for defendant Frank McCabe.
    Herbert A. Heminway, for defendant town of Campbell et al.
   Clark, J.

In this action the plaintiff, a taxpayer of the town of Campbell, Steuben county, seeks to set aside a contract made between the Buffalo Steam Roller Company and the town of Campbell, dated February 21, 1910, on the ground that the town officials were without power to enter into the contract, and that it is void.

There is no proof of any fraud in connection with this transaction, and the good faith of the parties cannot be questioned. The evidence establishes clearly that the conversations which led up to the making of this agreement, at least so far as the town officials were concerned, had in view the leasing and not the purchase of a steam roller, but the contract as finally executed is in fact a conditional contract for the purchase and sale of the steam roller, with an annual payment of $640, which the agreement said was to be ‘‘ rent, ’’ and if the town kept the roller up to the 31st day of October, 1914, paying $640 annually as “ rent ” therefor, then the Buffalo Steam Roller Company agreed to make, execute and deliver to the town a bill of sale of said roller, whereupon the title thereto was to vest in the town of Campbell.

A town cannot purchase a steam roller and pay therefor a greater sum than $500 per year, without first submitting the question to the voters at a town meeting, and that was not done in this case. Highway Law, § 94.

This being a contract for the conditional purchase and sale of the steam roller, it must be held that the instrument was invalid. Gardner v. Town of Campbell, 155 App. Div. 750.

It is undisputed that plaintiff was a taxpayer in the town of Campbell, both when the agreement in question was made and when this action was commenced, and therefore he was clearly within his rights in bringing it. Rogers v. O’Brien, 153 N. Y. 357; Queens Coumty Water Co. v. Monroe, 83 App. Div. 105.

It is urged by the learned counsel for defendant steam roller company that plaintiff cannot maintain this action because the contract was cancelled by agreement of the parties on or about May 25, 1912, whereas the action was not commenced until the 5th day of June, 1912.

It is true that an agreement was made about that time between the town officials and the steam roller company, whereby it was understood that there should be no further payments under the contract, and that the company would take back the roller, but that agreement to cancel the contract was not effectual until the roller had actually been returned to and accepted by the company, which was some ten days after the action had been commenced, so' the contract was actually in existence when the summons was served.

The contract having been entered into in good faith, a steam roller was delivered to the town and was actually used by it during the years 1910 and 1911, the full number of days paid for by the town.

It is undisputed that the work done by the roller was beneficial to the town and its taxpayers, and resulted in doing the highway work at a figure considerably lower than had been paid for the maintenance of highways prior to the time they used a roller. It was a machine that was suited to the needs of the highways of the town, and defendant company urges that, even though the contract is void, whatever moneys have been paid should be applied for the use of the roller.

Plaintiff, on the other hand, urges that the contract should be set aside as void, both as a bill of sale and as a lease, that the authorities had no power to enter into such an agreement, and that whatever moneys have been paid to the Buffalo Steam Roller Company should be returned to the town, and he cites People ex rel. Buffalo Steam Roller Co. v. Laidlaw, 155 App. Div. 759, as an authority holding squarely that the contract being void the steam roller company cannot be paid even for the time the town actually used .the machine. As I read the record in the Laidlaw case it differs from the facts established by the evidence in this case in one or two very important particulars. In the opinion of Mr. Justice Lambert in that case he emphasizes the fact that the town board had never fixed any rental for the use of the steam roller for the year 1911, the company in that action seeking to make the town pay for the use of the roller for that year. In the case at bar it is established that before the contract in question was made there were several meetings between agents of different steam roller manufacturers and the town officials in which the question of leasing a steam roller for the town was discussed. The matter of leasing such an appliance had been discussed informally by the town officials for a considerable time. Most of these conversations were had between members of the town board individually as they met each other at different times in the town, and then more formally when they would get together and have town board meetings. They discussed what the expense would be to lease a steam roller, and which roller would be the best suited for the needs of the town, they talked over the price they would be charged and which they could pay per day for the rental of such a machine, and ten dollars a day for rent thereof when it was in actual use was thought to be reasonable, and that was the price charged by the various steam roller manufacturers. The supervisor conferred with the town superintendent as to the number of days they would require a steam roller each year on the highways in the town of Campbell, and he stated that they would have use for it much more than sixty-four days per year; the number of miles of highway in the town was mentioned, the former expense of maintaining highways under the old system was considered and compared with the probable expense of using a steam roller, and all of these matters were considered and discussed by members of the town board individually at various times, and finally in a- formal meeting of the town board February 21, 1910, a resolution was passed to lease of the Buffalo Steam Roller Company the roller in question; the resolution was in writing, and was voted for by a majority of the town board, and that was followed by the making of the contract in question.,

I think that these various conversations, the resolution adopted February 21, 1910, and the agreement itself, should be read together, and from them all it would seem that the rental rate was actually understood, agreed upon and fixed before the contract was executed.

• Section 50 of the Highway Law distinctly authorizes town boards to rent steam rollers at a rental not exceeding ten dollars a day for each day such roller is actually used upon the highways. The town officials, by their conversations and the resolution -in evidence and the contract itself, intended and attempted to fix the rate of rental at ten dollars a day for the time the roller was used, and the town superintendent of highways actually used it on the highways of the town in 1910 and 1911 more than 128 days.

The town and its inhabitants, the plaintiff being among the number, had the benefit of the use of this roller, and the moneys already paid the steam roller company by the town, being $1,280, were no more than a fair price for the use of the machine, and even though the contract must be deemed void under the authority of Gardner v. Cameron, supra, the town, having received benefits thereunder, the steam roller company should be entitled to recover on a quantum meruit for the use of the machine. The town authorities having substantially complied with the statute in the matter of fixing* the rate of rental before the contract was executed, and the town having* had the use and benefit of the machine for over 128 days in the years. 1910 and 1911, a court of equity is justified in holding that there is an implied obligation on the part of the town to pay a reasonable sum for the use' of the machine. 1 Dillon Mun. Corp., §§ 126,132,133; Warner v. City of New Orleans, 87 Fed. Rep. 829; Brown v. City of Atchison, 39 Kan. 37.

It must be held therefore:

First. That the contract in question is illegal, null and void, because it was in effect a conditional contract to purchase a steam roller for the town of Campbell, the agreement providing for annual payments of more than $500 each, and that the matter had never been submitted to a vote of a town meeting, and that the town authorities, had no power to make the contract without such vote.

Second. That the town of Campbell having paid $1,280 to the Buffalo Steam Roller. Company, which was a fair and reasonable price for the use of the machine for the number of days the town actually used it on its highways, said roller company is legally and equitably entitled to retain said moneys for the use of said steam roller, and that said moneys should be offset against plaintiff’s claim that they be refunded to the town of Campbell.

Third. That the defendants Turnbull, Platt, Evans, Burrows, McCabe and Frederich, town officials of said town, having acted in good faith, it is adjudged that they are not personally, individually, separately or collectively liable to repay or refund to the town said sum of $1,280 or any part thereof, and that the complaint as to each of said defendants should be dismissed, without costs.

Fourth. Plaintiff, having authority as a taxpayer to bring this action to have a contract then in existence adjudged void, and he having succeeded on that branch of the case, is awarded costs against defendant Buffalo Steam Roller Company.

Findings may be submitted and judgment entered in accordance with these views.

Judgment accordingly.  