
    Edward Freel, Respondent, v. The County of Queens, Appellant.
    
      A contract to improve highways made by county commissioners-—a contractor is bound to know the limits of their authority—where quantities wre stated to be approximate a contractor bids at his peril and- cannot recover for extra work— proof of a forfeiture.
    
    The hoard of supervisors of the county of Queens directed the improvement of certain highways' in that county, and appointed commissioners who were authorized to prepare plans and specifications of the work, and all other instruments in writing, found necessary during the course of the work, and to execute the necessary contracts. It was provided, however, that all plans, specifications, contracts and other instruments in writing should he submitted to the board for approval, and that proposals for the doing of the work should be publicly advertised for.
    ' The advertisement for proposals expressly stated that the estimates of the quantities of work to be done were approximate only, and required the bidders to satisfy themselves of their correctness, and the contract stipulated that the contractor would not demand “ an extra compensation beyond the amount payable for the several classes of- work in this contract enumerated, which shall be actually performed at the prices therefor therein agreed upon and fixed,” and that the contractor admitted and agreed that the amounts and quantities of the work to be dime and materials to be furnished as stated in the proposals for estimates, were approximate only.
    
      Held, that the contractor could not recover for alleged extra work;
    That, as the commissioner's were public officers, all persons dealing with them were bound to ascertain the limits of their power and authority and were chargeable with knowledge.of such limits;
    That, if the work alleged to have been done by the plaintiff was not within the terms of the specifications then the commissioners were not authorized to con- . tract for its performance; and that, upon the other hand, if the work was within the requirements of the specifications, then, by the express terms of the contract, the plaintiff was not entitled to recover.
    Where the defendant in an action, brought to recover a balance due upon a contract, claims that the plaintiff has forfeited his right to receive such balance, by a failure to perform in time the work done under the contract, the burden rests upon him to prove that fact affirmatively.
    Appeal by the defendant, The County of Queens, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 30th day of March,'1896, upon the report of a referee.
    
      
      D. E. Delavan, for the appellant.'
    
      William C. De Will, for the respondent.
   Ctjllen, J.:

In the year 1892 the board of supervisors of the county of Queens, by two resolutions, directed the improvement of certain highways in the town of Jamaica, in that county. By these resolutions certain named persons were appointed commissioners to take charge of and superintend such improvements, ■ and the commissioners were authorized to make all necessary contracts for doing the work. The commissioners were directed to prepare plans and specifications and all other instruments in writing, necessary in the course of the work; “ provided, however, that all such plans, specifications, contracts and other instruments in writing shall be submitted to this board for its approval as to form and sufficiency before being signed by said commissioners, and provided further that proposals for the doing of such work shall first be publicly advertised for, as directed . by section 4 hereof.” In pursuance of this authority the commissioners entered into written contracts with the plaintiff for improving .certain highways. The contracts for the several highways were all of the same general form and were entered into in pursuance of advertisements for proposals made by the commissioners and of bids made by the contractor in answer thereto. The advertisement for proposals gave the engineer’s estimate of the quantities and qualities of the work, but expressly stated that the quantities were approximate only and required any bidder to satisfy himself as to the accuracy of the estimate:

It was further expressly provided that: “No extra compensation beyond the amount payable for the several classes of work before enumerated, which shall be actually performed, at the prices therefor to be specified by the lowest bidder, shall be due or payable for the entire work.”

It was further specified . that no deviation from the specifications would be allowed unless written permission should have been previously obtained from the commissioners and that “ work or material not specified and for which a price is not named in the contract will not be allowed for.” The bidders were required to state a price per running foot for completed pavement. The bid of the plaintiff stated that he had examined this request for proposals and the proposed contract, and offered to contract for all the work for a specified price per running foot of completed pavement. By the con- . tract subsequently executed by the parties the plaintiff admits and agrees that the amounts and quantities of materials' to be furnished and work to be done, as stated in the proposals for estimates for the said .work, are approximate only, * '* * and that he covenants and agrees that he will do the entire work to the satisfaction of the said commissioners, and in substantial accordance with said specifications, and that he will not ask, demand, sue for or recover for the entire work; an extra compensation beyond the amount payable for the several classes of. work in this contract enumerated, which shall be actually performed at the prices therefor herein agreed upon and fixed.” The claim in this action is for an unpaid balance of the contract price for the improvement of the Merrick road and for- extra work done in the pavement of Yan Wyck avenue and Broadway. The items of extra work claimed by the plaintiff and allowed by the referee were, for loam spread on Broadway and Yan Wyck avenue; for labor in surfacing Yan Wyck avenue, and for screenings thereon; for Boa Hook gravel furnished for Broadway, and for excavations and hauling on that street, amounting in all to $11,130,

We are inclined to the opinion that, assuming it was within the power of the commissioners to modify the contract and order extra work, the plaintiff has not shown himself entitled to recover for the work in suit; except for the unpaid, balance of the contract price for the Merrick-road. The contract was drawn to preclude claims, for extra work of the character of that here presented.. The plaintiff expressly admitted that the' amounts and quantities of materials stated in the advertisement for estimates were approximate only, and stipulated that he would not ask, demand or sue for extra compensation for the several classes of work enumerated in the contract, and as to the work of a class not enumerated in the contract, and for which no price was named, should not be allowed anything therefor.

. It is apparent from the testimony that the commissioners did not assume to modify the contract. The plaintiff was referred by them to' the engineer and directed to comply with his instructions in the per- formance of- the work. In the main the work done by the plaintiff was. not directed to be performed as additional to or outside of the. contract, but as in the proper performance thereof. The plaintiff’s, foreman testifies that such work “ didn’t help the road a bit, but. we had to do it or stop the work. * * * I declined to do it. The result was we had to do it or stop ; it was necessary, because the-commissioners told us that we must do as the engineer says.” Therefore, when the plaintiff yielded to the demand of the engineer or commissioners to perform such work, he acceded to their contention that the work was necessary to the proper performance of the contract.

As to the item of the Roa Hook gravel, the evidence seems to-support the plaintiff’s claim that this was in excess of the contract, material. It was testified that the foreman, having suggested to the. engineer that this gravel was the best covering, the engineer agreed to order it if the commissioners would authorize it. For 500 yards actually used the plaintiff received additional pay. The claim in suit is for the value of 300 yards delivered at the work but not used. This quantity the plaintiff claims was rendered worthless, because the engineer stopped him from further using that material.- As to this item the claim is not, in truth, for extra work, but for a breach of the contract, to take the material. Such a claim was not alleged in the complaint, nor do we find the evidence sufficient to show that there was an agreement to receive any definite amount. The plaintiff would, therefore, not be entitled to recover the value of this, material.

But however this may be, we are clear that the commissioners-had no power to impose on the county any liability for work outside of and beyond the provisions of the contract. The commissioners were public officers. Their sole authority to bind the county proceeded from the resolutions enacted by the board of supervisors. All persons dealing with them were bound to ascertain the limits of their powers and authority, and are chargeable with knowledge of such limits. (Lyddy v. Long Island City, 104 N. Y. 218 ; Donovan v. The Mayor, 33 id. 291.)

The resolutions did not constitute the commissioners sole judges of the improvements to be prosecuted, or authorize them to make-such contracts for the improvements as they deemed proper. The= grant of authority to the commissioners was expressly subject to-the provision- that not only the plans and specifications of the improvements, bnt also the contracts for its performance, should be submitted to the board of supervisors for approval. If the work done by the plaintiff is not within the terms of the specifications, then the commissioners were not authorized to contract for its performance, for it is only work required by the specifications approved by the board of supervisors that the commissioners were authorized to contract for or prosecute. If within the requirements of the specifications, then, by the express terms of the contract, the plaintiff is not entitled to recover for such work. The only power given the commissioners was to execute a contract previously approved by the board of supervisors. A modification of an existing contract without such approval would be as invalid as the execution of an original contract without complying with this provision of the resolutions. While it was intended that the commissioners should not only have charge and superintendence of the physical prosecution of the work, but should also, in the first instance, determine what the work should be and what character of contract should be made therefor, still it was also intended that the action of the commissioners, in the latter respects, should not become final or operative, except with the assent and approval of the board of supervisors; and it was further intended that no liability should be imposed on the county, except in pursuance of a contract approved by that board and awarded after advertisement. Therefore, no action of the commissioners, except when had in' strict compliance with the authority vested in them by the board of supervisors, could in any wise bind the county.

As to the first item of the plaintiff’s claim, the unpaid balance of the contract price, we-think this was properly allowed to plaintiff. There is no evidence in the case sufficient to show that he forfeited this amount by his failure to perform the work in time. Gn this question the burden of proof was upon the defendant, and it was bound to establish affirmatively that it was entitled to retain the money.

The judgment appealed from should be reversed and a new trial granted before a new referee,, costs-to abide the event, unless the-plaintiff. stipulates to reduce the amount found due to him to the sum of $1,730, with interest from January 1, 1894, in which case the judgment, as reduced, should he affirmed, without costs to either party.

All concurred.

Judgment reversed and new trial granted before a new referee, costs to abide the event, unless, plaintiff stipulates within twenty days to reduce the amount found due to him to the sum of $1,730, with interest from January 1, 1894, in which case the judgment so reduced is affirmed, without costs of appeal.  