
    KINGSLEY v. CITY OF BROOKLYN.
    
      City Court of Brooklyn;
    
    
      General Term, July, 1878.
    Municipal Contracts. — Public Proposals. — Limit op Cost.— Limit op Appropriation. — Changes op Plan. — Excess op Cost Over Authorized Expenditure. — Prevention op Completion. — Appeal.—Modification by Increasing.
    A board of commissioners created for the construction of a public work, and charged with the duty of contracting therefor, need not call for bids or proposal with a view to public competition unless expressly required to do so.
    
    Hence, if they invite proposals when not required to do so, they may nevertheless, before signing a contract, alter the specifications furnished to the successful bidder, there being no fraud.
    
    
      Under a statute making it the duty of a board of officers to contract for the execution of a public work, according to a plan adopted by the city, “ provided the whole expense thereof shall not exceed ” a specified sum, with a provision for the issue of city bonds to raise . the money, — a contract for doing the whole work for a sum not in excess of that amount is valid, although it reserves power to the city to make changes in detail which may be found necessary in carrying out the work.
    
    The word “ plan,” in such an act for constructing a very extensive reservoir, —Held, in view of the nature of the work, to relate to the generic character of the work as a storage reservoir, and not to preclude changes in the details of work and materials. So held, where the legislature, after such changes had been made, granted authority to take additional land to enlarge the area.
    
    In an authorized express contract by a municipal corporation, a reservation to the proper officers, of power to make changes in detail, and fix the prices of extra work, if any should be so required, is valid.
    
    Whether.a municipal corporation can be held on an implied agreement, or a quantum m&ruit, — Query ?
      
    
    Where, under such a contract, changes were made by the city officers, but performance of the work as thus increased was stopped by the city before its completion, — Held, that the contractors could recover against the city for work actually done up to the amount of the appropriation.
    The fact that the account, as finally stated, including the cost of changes, exceeded the appropriation, does not vitiate the contract, nor preclude a recovery up to the limit of the appropriation.
    Expenses of the preliminary plan, &c., and incidental expenses of the city government, relating to the work and the controversy respecting it, but not actually incurred in the construction of the work, and expenses incurred after the contractors were stopped, — Held, not a part of the entire cost, within the meaning of the proviso.
    An act of the legislature, passed after work in excess of an appropriation has been done, authorizing a further appropriation for the completion of the work, is a ratification of the prosecution of the work beyond the original limit of cost.
    
    Referees found that plaintiffs, but for a limit of appropriation, would be entitled to recover a specified sum from the municipal corporation defendant, but that applying the limit, they were entitled only to recover a less sum, for which the referees gave judgment. Held, on plaintiffs’ appeal, that the court, although of opinion that the supposed limit was not applicable, were not authorized by the statute (Code Civ. Pro. § 1317), to modify the judgment by increasing it; but must affirm it.
    
    
      Appeal by both, parties from a judgment.
    William C. Kingsley and Abner C. Keeney sued the city of Brooklyn to recover a balance of $178,000, claimed due for work and materials for the Hempstead reservoir under a contract made between the city, by tke Permanent Board of Water and Sewerage Commissioners for the city, and the plaintiffs. The material allegations of the pleadings which are indicated in the opinion, are more fully stated in the report of the motion for a reference (1 Abb. New Cas. 111).
    The gist of the defense was, that the city designed to have a storage reservoir, complete, with paved slopes and dam, at an expense of $1,400,000, and with a capacity of 1,000,000,000 gallons ; but that when the plaintiffs ceased work $1,342,896.63 had been spent, and the work was left unfinished with a claim for $178,000.
    Charges of fraud made in the pleadings were not sustained by proof.
    The system of statutes under which this work was carried on were as follows :
    The first act upon the subject was passed April 12, 1855. It created a private corporation, known as the Nassau Water Company, with power to build works, &c., and to supply the city of Brooklyn and its inhabitants with water (see Laws of 1855, chap. 333, p. 601). Section 26 provided that the city of Brooklyn, on paying the stockholders, might assume the work ; and upon such assumption the entire property should vest in the city.
    On February 11 1857 (1L. 1857, p. 35, c. 22), an act was passed which provided that all the property and works of the Nassau Water Company should, upon certain conditions, become the property of the city.
    By the second section of the act, a board of water commissioners was created, charged with the duty of constructing and completing said works according to a contract already made between H S. Wells & Co. and the Nassau Water Company.
    Section 3 of the act named the directors of the Nassau Company as a board of commissioners to complete the work, and to hold office until it should pe completed.
    
      Section 9 provided for tlie issue of bonds of the city to pay for the work.
    On April 16, 1859, another act was passed, entitled “An act to provide for the supply of the City of Brooklyn with water” (L. 1859, p.924, c. 396).
    Section 2 of this act provided that “when the said water works shall be completed so as to be capable of delivering and distributing ten millions of gallons daily, the commissioners should certify the same to the common council of said city, and thereupon the exclusive control and management thereof, as fast as the same shall be completed, should be transferred to a permanent water board to be created.
    Section 3 created the permanent water board, to consist of four commissioners ; and the section declared that the permanent board is charged with the duty of managing said works so as to attain the object for which they were constructed, and of keeping them in a state of efficiency and repair; and the board is authorized from time to time to expend such sums of money as shall be appropriated by the common council for those purposes.
    By act of May 11 (L. 1865, p. 1412, c. 699), the authority conferred upon the board of construction by the act of 1857 was devolved upon the permanent water board. April 2, 1869, was passed “An act to reorganize the board of water and sewerage commissioners of the City of Brooklyn,” &c., &c. (1 L. 1869, c. 97, p. 168). By this act all the powers then possessed by the permanent water board were transferred to the board reorganized by this act.
    On May 5, 1870, an act was passed (2 Laws of 1870, p. 1506, c. 652), amending the last mentioned act in several particulars. Section 5 of this act of 1870 was as follows :
    “ § 5. It shall be the duty of the said commissioners 
      to prepare and submit to the common council of said city, at as early a day as practicable, a plan for furnishing an increased supply of water for said city, including such extension of the present works, and the construction of such farther reservoirs, conduits and other structures as may be necessary for that purpose, together with an estimate of the probable expense thereof. The said common council shall examine such plans and estimates, and shall determine what may be most expedient for the object aforesaid to be done, and may adopt such plan, or any portion thereof, as it may deem proper, and thereupon the said commissioners shall proceed to carry such determination into effect as provided by this act. They shall acquire in the name of the said city the title to such lands, ponds and streams as may be necessary, but, before any purchase shall be made thereof by them, they shall report the terms and conditions to the said common council, and obtain its approval thereof. Upon the approval by said common council of the before mentioned provisions, the said commissioners shall cause said work to be done, and shall employ proper persons to inspect the same.”
    Section 6 declared that the provisions of the above mentioned acts of 1855 and 1859, “for the acquiring of lands, ponds and streams, by purchase or otherwise; for ascertaining the compensation to owners and occupiers of land or water which may be taken or used, and the payment thereof; for the issuing of the bonds of said city for the payment of the expenses authorized by this act; for the levying by tax on the taxable property in said city the amounts necessary to pay such bonds and the interest thereon as it shall become due ; for the sale of such bonds ; and for the pledge of the property of the said city for the payment of such bonds, are hereby adopted as a part of this act, so far as they can be made applicable to the purposes hereof.”
    There was no limit of cost or expense in the act, other than that implied in the provision for fixing on a plan, with estimates.
    The referees found that the commissioners, in pursuance of the duty enjoined by the act of June 27, 1870, submitted to the common council a plan with an estimate of expense. The engineer’s report accompanying it suggested the possible desirableness of a change in the plan by taking in a then existing pond, but added that the total cost would not be enhanced by so doing. The common council referred the plan and accompanying report to a committee, upon whose report the resolutions were adopted, which declared, 1, the expediency of constructing a storage reservoir of 1,000,000,000 capacity; 2, that the plan submitted was aproved and adopted ; 3, that a sum not exceeding $1,400,000 is hereby appropriated for the payment for land, and the complete construction; 4, that city bonds be issued from time to time for that amount, as required for the purpose of meeting such appropriation.
    After much opposition, and a veto by the mayor, this ordinance was passed, over the veto.
    Subsequently the legislature passed chapter 47 of the Laws of 1871 (February 18), the material parts of which are as follows :
    “An act to provide for the further supply of the city of Brooklyn with water, and for the payment of the expenses thereof.”
    “§ 1. It shall be the duty of the permanent board of water and sewerage commissioners of the city of Brooklyn to proceed to carry into effect the plan for the furnishing an increased supply of water for said city, and for such extension of the present water works of said city, and the construction of such further reservoirs, conduits and other structures as may be necessary for that purpose, heretofore submitted by the said board to the common council of the city of Brooklyn, and approved by a resolution of the board of aider-men of said city, on the 11th day of July, 1870, provided the whole expense thereof shall not exceed the sum of SI,400,000, and which said resolution was finally adopted by the common council of said city by a two-third vote, on the 12th day of December, 1870, and to that end the said permanent board of water and sewerage commissioners shall acquire, in the name of and for the city of Brooklyn, the title to such lands, ponds and streams as may be necessary therefor; but before any purchase shall be made by said permanent board of water and sewerage commissioners, they shall report the proposed terms and conditions thereof to the said common council, and obtain its approval of the same. Upon the acquisition of said lands, ponds and streams under this act, the said permanent board of water and sewerage commissioners shall cause the necessary work to carry said plan into effect to be done, and shall employ proper persons to inspect the same.”
    Section 2 declared that the provisions of the above-mentioned acts of 1855 and 1859, “for the acquiring of lands, ponds and streams, for ascertaining the compensation to owners and occupiers of land or water which may be taken or used, for the issuing of the bonds of said city, the proceeds of which said bonds shall be used for the payment of all the costs, charges and expenses authorized by this act, as also the costs, charges and expenses heretofore incurred by said permanent board of water and sewerage commissioners for preparing the plan aforesaid, for the levying by tax on the taxable property of the city' of Brooklyn, the amounts necessary to pay such bonds, and the interest thereon as they shall become due, for the sale of such bonds and for the pledge of the property of said city for the payment of such bonds, are hereby adopted as a part of this act so far as they can be made applicable to the purposes hereof.”
    The referees found that the plan referred to in this act of 1871, at the time of its adoption, contemplated that the reservoir was to be constructed according to the specifications, and such changes thereof as might from time to time be deemed necessary by the board of water and sewerage commissioners, or their engineer, as provided in the specifications. The cost of the entire work was estimated at $1,393,743.
    That thereafter the board decided that it was necessary to take more land so as to include the mill-pond known as Nichols’ pond ; and adopted a new map ; and the city with the approval of the common council acquired the necessary additional land, at a cost of about $50,000.
    The board invited five experienced contractors to submit proposals for the work, upon specifications furnished by the board, which differed in some details from those submitted to the common council. On receiving the proposals, the board voted to award the contract to the plaintiffs, whose proposal was the lowest, if they would make a further reduction. A contract was then executed, dated January 9, 1872, for the whole work; but with still further changes of detail.
    In the contract as executed, there was no clause requiring an engineer’s certificate of completion of the work. There was a provision that if anything shall have been accidentally omitted in the plans and specifications referred to therein, which shall be deemed by the engineer appointed by the water and sewerage commissioners to inspect the materials and superintend the work, essential to the proper construction and efficient working of the reservoir and appurtenances^ then the materials and work necessary to supply such omission shall be furnished and done by Kingsley and Keeney under the direction of the said engineer, and at a price to be named by him, should there be no price affixed to the same in the schedule of prices annexed to the specifications.
    .. After the execution of the contract, changes were made by and under the direction and authority of the chief engineer, under the provisions in the contract, and which were contained in the specifications submitted to the common council authorizing him to make modifications and changes in the construction of the work.
    In the summer of 1873, the dam at Nichols’ pond having given way, it was removed, and a bed of muck, discovered under the bottom of the pond, was excavated and removed, thus enlarging the area of the reservoir.
    The referees found that the chief engineer deemed each of these changes necessary and proper, and in directing them to be made he acted in good faith ; and none of the changes were directed or made with the intention of increasing plaintiffs’ profits, or benefiting them. And none of the changes changed the substantive plan for furnishing an increase of supply water for the city of Brooklyn, adopted by the common council, as before stated. They were merely additions, omissions, modifications, and changes of the details of the mode and manner of constructing the reservoir and other structures necessary to carry the plan into effect.
    During the progress of the work the plaintiffs were paid $1,094,137.92 on account, before they were directed to stop work; and the referees found that there remained unpaid, on account of the work $167,-799.77. April 17, 1874, the engineer, under instructions of the board, directed plaintiffs to cease work on the Nichols’ pond; August 6, to cease work on the storage reservoir, and confine operations to completing the dam ; August 19, to cease all work. Insufficiency of funds was assigned as the reason.
    May 8, 1875, on the application of the city, the legislature passed chapter 258, as follows :
    “Section 1. Upon the approval of the plans, specifications and estimates therefor by the common council of the city of Brooklyn, the board of city works of said city are hereby authorized to complete the Hemp-stead reservoir ; and for that purpose the said city is hereby authorized to issue such bonds as said common council may deem necessary, not exceeding $500,000 in amount; and no such plans, specifications and estimates shall be approved, nor shall such work be done, except upon a stipulation, under suitable penalties, that the work aforesaid shall be fully finished and completed for the sum aforesaid.”
    The city then took possession of the work, against the remonstrance of the plaintiffs.
    The referees concluded as matter of law, that the common council were authorized to adopt the plan, on the estimate of cost; that the additional land was lawfully acquired; that the contract was lawful and obligatory on the city, the changes lawfully made, and the plaintiffs were not to be required to produce any certificate of performance. That neither the cost of plans, &c., incurred before the act (ch. 47) of 1871, nor the cost of city officers, &c., visiting the works, &c., could be deducted from the limited appropriation.
    The result was tha,t while $167,799.77 was found to be due under the contract, they allowed plaintiffs to recover only up to the appropriation, viz., $107,837.25, leaving the residue of nearly $60,000 unpaid, which they held not recoverable as incurred in excess of the appropriation.
    
      
      The referees, Hon. John A. Lott, and Thomas H. Bodman and George H. Fisher, Esqs., in their opinion, after holding that the allegations of fraud and collusion were unsupported, passed on the legal questions as follows :
    “ Another objection urged by the defendant’s counsel is that the contract, as executed, was not in accordance with the plans and specifications originally submitted to the bidders, but was, prior to execution, changed in many important particulars, all in the interest of the plaintiffs and to the prejudice of the defendants.
    “ It is true that intermediate such submission of the plans and specifications and the formal execution of the contract, the chief engineer, apparently on his own responsibility, omitted several articles of the specifications, altered others by erasures and interlineations, as stated in our report, and (section) inserted number 52, as shown in the report, in place of the original section designated by the like number, by pasting a printed slip, containing the arbitration clause, so called, over the original section, which the plaintiffs had objected to on account of its arbitrary character. Those changes were no doubt made by him by virtue of his supposed power as chief engineer, and that of the water board, expressly reserved in the specifications themselves ; which power, in our opinion, clothed him and the board with requisite authority to do so. If the chief engineer and the water board — one or both — could lawfully change the “designs” or “the plan” of the reservoir, “as the work progressed,” or “alter the amount or character of any particular piece of work,” and the contractors were bound to make any such required change accordingly, in “conformity with the directions of the engineer” (in the words of the contract), the changes in question, preliminary to the execution of the contract, cannot defeat the contractor’s right to recover for work actually done under the contract and in obedience to the directions of the engineer..........
    “It was very earnestly argued by the defendant’s counsel, that such a construction would be fatal to the rights of the city, because, if the engineer or the board could change the plan or vary the details of the work in one instance, they could in any number of instances, and thus change the whole plan. The power was certainly liable to be abused, but so is every power devolved upon public officers. The only question in this respect submitted to us is, — is there such a power, and if so, what are its limits? We have no right to sustain or reject it, according to our views of the propriety or wisdom of conferring it. That was for the common council, that approved of the power, and for the legislature, that authorized it, to determine . . .
    “It may well be, that the reservation of such a power to the city, to be exercised necessarily by some of its officers, was a wise and usual provision in such a contract for a work of such magnitude, and about the success of which a serious difference of opinion existed.
    “ As to the effect of the changes upon the plaintiffs’ right to recover, the question is narrowed to the right to change section 52, or the arbitration clause; for' there is no evidence that they in any way influenced or attempted to influence the making of the other alterations.
    “We conclude that their right to recover is not impaired by any of those changes of the specifications by the chief engineer prior to the execution of the contract.
    “But even assuming the contract was authorized by the act of 1871, and contemplated the carrying out of the plan approved by the common council, the defendant’s counsel, with great positiveness, insists that still the plaintiffs cannot recover; because that plan prescribed the limits of the power of the city to bind itself ; that any departure from it was ultra vires ; any work done or materials furnished outside of the plan, —as they say, — was done and furnished without lawful authority, and any money already paid therefor, can be either recovered back or its amount should be set-off against any claim for work done or materials furnished within the plan. They say the plan was a specific plan; that the specifications of the details of work and materials were fixed and inflexible. That the water board and its engineers, in constructing the reservoir, departed widely, and in numerous instances, from those specifications ; and, therefore, the plaintiffs who performed such work, and furnished such materials, acted in their own wrong, and the city, although in possession and enjoyment of the work, is not liable.
    “After the most careful consideration, demanded by the importance of the controversy, and the zeal and ability with which the defense has been conducted, we are unable to apply the doctrine of ultra vires to the case. We think the argument is based upon an erroneous assumption of fact. The defendant’s counsel* assume that the plan is specific; meaning that the details of work and material are fixed and inflexible. They give no effect to the power to change the plan of the work, or the amount and quality of any particular piece of work. Divest the plan of that feature, and there would, to say the least, be an essentially different case to which to apply their argument.
    “ In our opinion, none of the changes made by Col. Adams, which the plaintiffs carried out under his direction, were outside of the plan authorized by the common council in such a sense as to defeat the plaintiffs’ right to recover.”.......
    
      “If the power of the city to purchase were ex-pessly limited to the exact area of land laid down on the land plan or the outline of the reservoir submitted to the common council, the objection of the defendant’s counsel would be a serious one, as affecting the title to the pond and the other additional land thus acquired.
    “ Upon that objection being first made, we doubted whether the power was not thus limited. A full and careful examination has removed that doubt and satisfied us that the act of 1871 contained authority to the water board, in the name of the city, to make the purchase actually made, and that its power was not there thus limited.
    “ Section 1, after requiring the water and sewerage commissioners to carry out the plan of the reservoir at an expense not exceeding $1,400,000, declares that, £to that end,’ that is, in order to carry out the plan of the reservoir, ‘the commissioners shall acquire, in the name of the city, the title to such lands, ponds and streams as may be necessary therefor ;’ not such lands, ponds and streams as are laid down or described in said plan, but such as shall ‘be necessary’ to carry out the plan. The carrying out of the plan was one «thing ; the acquisition of the lands, ponds and streams, necessary therefor, was another, connected with the first, but to be accomplished independently of and preliminary to it.
    “ The power is certainly not in terms limited to a specific quantity of land. We do not think the context, or the circumstances surrounding the adoption of the act, require the narrower interpretation. Mr. Justice Barkard, in the mandamus case, and Mr. Justice Gilbert, in the suit of these plaintiffs against the city, both held that the title to the land purchased ivas in the city ; and, in the last case, the city assumed that as the foundation of its defense, and the court held accordingly. . . This view of the act is in harmony with the character of the plans and specifications submitted to the common council as we regard them.”
    “Another defense is, that the fund of $1,400,000 has been exhausted, and, therefore, the city is not liable for the balance due on the contract. If the fact was so, this would be a complete defense, for the liability of the city as a corporation is clearly limited to the appropriation of $1,400,000. However morally just the plaintiffs’ claim may be, that is the limit to which it can be enforced. It is necessary, therefore, to ascertain the state of the appropriation in respect to the right of the plaintiffs to charge it for their compensation.
    “ It appears by the accounts of the comptroller, and also by that of the water board, that there is an unexpended balance of upwards of $57,000 still in the treasury, and in both of those accounts are included payments amounting to nearly $23,000 for costs, charges, and expenses incurred by the permanent board of water and sewerage commissioners, under section 5 of the act of May 5, 1870, in preparing a plan to submit to the common council for furnishing an increased supply of water for the city.
    “No portion of that sum is properly chargeable against the fund. Section 1 of the act of February 18, 1871, directed the board to carry that plan into effect, limiting the expense thereof to $1,400,000, and the common council, on approving it, on July 11, 1870, by a resolution of that date, had appropriated the whole of that amount for the payment of the land required for the reservoir and the complete construction thereof.’ This clearly should not authorize the payment of any part of the appropriation for expenses incurred'for any other purpose. Any diminution of the amount would reduce the means of carrying the plan into effect. When the board of water and sewerage commissioners submitted the plan to the common council, it was accompanied with an estimate of the expense thereof, and that showed that it was estimated at $1,393,748.
    “It is, therefore, apparent that it was not contemplated by the common council that the appropriation limited by their resolution for the payment of the land required ‘ for the reservoir and the complete construction thereof,’ should be applied to the payment of expenses already incurred; and the legislature, in directing the work to be done and that the expense thereof should not exceed the sum of $1,400,000, had reference to future expenditures therefor. And then, by section 2 of the act of 1871, make provision for raising that amount by a sale of bonds of the city, to be issued for that purpose. It, after extending and adopting the provisions of previous acts of the legislature for the issuing of such bonds, and other subjects to the said act, so far as they could be made ‘ applicable to the purposes thereof,’ declares as follows : The proceeds of which said bonds shall be used for the payment of all costs, charges, and expenses authorized by this act, as also the costs, charges, and expenses heretofore incurred by said permanent board of water and sewerage commissioners for preparing the plan aforesaid.’ It provides for the application of the proceeds of the bonds to the distinct and different classes of expenditures ; the first applies to expenses authorized by that act — being those to be incurred to carry into effect the plan for the furnishing an increased supply of water for said city, approved by a resolution of the board of aldermen of the said city, on July 11, 1870;’ the other relates and applies to expenses that had, previous to the passage of that act, been incurred by the board of water and sewerage commissioners for preparing the plan aforesaid.
    “There are other payments charged against that fund, which are, in our opinion, not allowable as against the plaintiffs. Some for expenses incurred after the contract for the construction of the works was entered into on behalf of the city with them, and before they were ordered to stop work, and the rest for expenditures after he work was stopped.”
    Both parties appealed from the judgment.
    
      Wm. C. DeWitt and John E. Parsons (Wm C. DeWitt, corporation counsel), for the defendants, in support of the defendants’ appeal,
    As to the point that the recovery must be limited to the amount of the unexpended appropriation: Act of February 18, 1871; McDonald v. Mayor, &c. of N. Y., 68 N. Y. 23; Donovan v. The Same, 33 Id. 291. That plaintiffs were not entitled to recover at all, 1. Because the contract was invalid : L. 1862, 200; L. 1865, 143; L. 1859, 924; L. 1869, 168. 2. Because of failure to produce certificate of acceptance by water board: Ellis v. Mortimer, 1 B. &.P. N. 257; McCarren v. McNulty, 7 Gray, 139; Aiken v. Hyde, 99 Mass. 183; Goodrich v. Van Nortwich, 43 Ill. 336; Hunt v. Leyman, 100 Mass. 198; Draper v. Jones, 11 Barb. 263; Heron v. Davis, 3 Bosw. 336; McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. 463; United States v. Robeson, 9 Peters, 319; Smith v. Briggs, 3 Den. 73; Wyckoff v. , 44 N. Y. 143; Glacius v. Black, 50 Id. 145; Grube v. Schultheiss, 4 Daly, 207. 3. Because they cannot be paid for work outside of the plan: People v. Field, 58 N. Y. 505; Supervisors v. Ellis, 59 Id. 620. And money so paid can be recovered back; Hodges v. Buffalo, v. Den. 110; Starin v. Town of Genoa, 23 N. Y. 449; Farmers’ Loan & Trust Co. v. Carrol, 5 Barb. 649; Brady v. Mayor, &c., 2 Bosw. 183, affi’d 20 N. Y. 312; Haughwout v. Mayor, 2 Abb. Ct. App. Dec. 345; Donahue v. Mayor, 10 Hun, 37; Bigler v. Mayor, 6 Id. 239; McDonald v. Mayor, 68 N. Y. 23.
    In opposition to plaintiffs’ appeal they cited, — As to want of power of the court under the Code to enlarge the plaintiffs’ judgment: Code of Civ. Pro. §§ 1317, 1320, 1321. As to limit of expense in executing plan : L. 1865, c. 721, §§ 6, 7; L. 1854, p. 853, c. 384, tit. 3, § 15; L. 1862, p. 204, § 40; L. 1859, p. 924, c. 396, §§ 1, 10; Matter of Second Ave. M. E. Church, 66 N. Y. 398.
    
      Joshua M. Van Cott and Benjamin F. Tracy (B. F. Tracy, attorney), for plaintiffs, in support of plaintiffs’ appeal,
    As to the point that the judgment should have been for the value of the work done, and materials furnished: L. 1855, p. 601, c. 333, §26 ; A. 1857, p. 35, c. 22 ; L. 1859, p. 924, c. 396; L. 1865, p. 1412, c. 699; L. 1869, p. 168, c. 97; L. 1870, p. 1506, c. 652, §§ 5, 6; L. 1871, p. 56, c. 47; L. 1675, p. 249, c. 258 ; Sedgw. on Stat. 354, and cases in foot-note ; Silver v. Ladd, 1 Wallace, 219; Muller v. Mayor, 63 N. Y. 357-8 ; Smith v. People, 47 N. Y. 336-7; Sussex v. Peerage, 11 C. & P. 86; Newell v. People, 7 N. Y. 97; McCluskey v. Cromwell, 11 Id. 593; Com. Dig. Parliament, 11; People v. Clute, 63 Barb. 356; Tonnele v. Hall, 4 N. Y. 144; People v. Utica Ins. Co., 15 Johns. 358, 380; Butterfield v. Rudd, 58 N. Y. 489, 490. As to ratification by act of 1875 of what had been done in excess : 56 N. Y. 261; Cooley on Const. L. 374-9 ; Dillon on Mun. Corp. 46; Ang. & A. on Corp. § 264 a; 19 N. Y. 218 ; 21 Wis. 217 ; 5 Otto, 644 ; Brown v. Mayor, 63 N. Y. 239, and cases cited by counsel; Nelson v. Mayor, Id. 535, 545; Thomson v. Lee County, 3 Wallace, 327, 331; Campbell v. City of Kenosha, 5 Id. 195; Supervisors v. Schenck, Id. 772; City v. Lamson, 9 Id. 478, 485; Union Pac. R. R. Co. v. Hall, 1 Otto, 343, 353; Hasbrouck v. City of Milwaukee, 21 Wis. 217; Dillon on Mun. Corp. §§ 46, 385; People ex rel. McLean v. Flagg, 46 N. Y. 401, 406. As to excess having been condoned, the obligation incurred became a valid debt: Ang. & Ames on Corp. § 264 a; White Water Canal Co. v. Valette, 21 How. U. S. 414 ; People v. Brooklyn, 22 Barb. 404; Sedgw. on Stat. 531; Sibley v. City of Mobile, 4 Am. L. Times R. N. S. 226; City of Galena v. Amy, 5 Wall, 708; High on Eg. Rem. § 397; Supervisors v. United States, 4 Wall. 435; Marsh v. Town of Little Valley, 64 N. Y. 112; Cummings v. Brooklyn, 11 Paige, 596; Beard v. Brooklyn, 31 Barb. 142; Baldwin v. City of Oswego, 1 Abb. Ct. App. Dec. 62; Hines v. City of Lockport, 50 N. Y. 239; Messenger v. City of Buffalo, 21 Id. 196; Clark v. Miller, 54 Id. 528; Dannat v. Mayor, 66 Id. 589; United States v. Clark County, 5 The Reporter, 131; 68 N. Y. 114; 51 Id. 401. As to court increasing the amount of the judgment: 66 Id. 506, 517; Code, § 1317; Andrew v. N. J. Steamboat Co., 11 Hun, 490; Edwards v. Aberayon Mut. Ins. Co., L. R. 1 Q. B. Div. 563, 581; Browning v. Prov. Ins. Co. of Canada, L. R. 5 Privy Council Appeals, 263, 376; Alvord v. United States, 5 Otto, 356, 359; Lee v. Adsit, 37 N. Y. 78, 98; Canady v. Stiger, 55 Id. 453, 456; reported below in 35 N. Y. Super. Ct. (J. & S.) 423; Millard v. McMullin, 68 N. Y. 345, 355; Hannahs v. Hannahs, Id. 610, 613; 12 Id. 336; 28 Id. 508; 46 Id. 627; 57 Id. 560; 59 Id. 244.
    In opposition to defendant’s appeal they cited,— as to there being no fraud: Greene v. City, 60 N. Y. 303; People v. Van Nort, 64 Barb. 205; Earl v. Peck, 64 N. Y. 596; Worth v. Case, 42 Id. 362; Sherman v. Mayor, 1 Id. 316. As to performance of contract: Clark v. United States, 6 Wall. 543, 547. As to want of final estimates, and certificate being excused by defendants stopping further execution of the contract: Hochter v. Delatour, 20 Eng. L. & Eq.; Burtis v. Thompson, 42 N. Y. 246; Shellington v. Howland, 53 Id. 372; People v. Bartlett, 3 Hill, 570; Heine v. Meyer, 61 N. Y. 171; Niblo v. Binsse, 3 Abb. Ct. App. 
      
      Dec. 375; Omaha v. Hammond, 4 Otto, 98; McMahon v. Erie R. Co., 20 N. Y. 463; Bowery Bank v. Mayor, 63 Id. 339; Phillips v. Seymore, 1 Otto, 653; Thomas v. Fleury, 26 N. Y. 26; Devlin v. Second Ave. R. R. Co., 44 Barb. 81, 84. As to voluntary payments: Knowlton v. Congress, &c. Spring Co., 57 N. Y. 518; Flower v. Lance, 50 Id. 603, 610; R. R. Co. v. Marsh, 12 Id. 308; Parish v. Wheeler, 22 Id. 494; Whitney Arms Co. v. Barlow, 63 Id. 62; Supervisors v. Ellis, 59 Id. 620.
    
      
       See note at the end of the case.
    
    
      
       Officers receiving proposals may accept the lowest bid though it departs from the terms of offer in respect to the time for executing the contract. 10 Op. Att.-Gen. 140.
      Where the law requires public proposals, a provision, not contained in the advertisement, but inserted in the contract made, that the com tract might be extended by mutual agreement, is not valid, against the government, and after making such an extension the government may revoke it. 13 Op. Att.-Gen. 174.
    
    
      
       A statute authorized a city to construct a work, and provided for the appointment of commissioners to execute it, and declared that “for the purpose of defraying the cost .... and paying all expenses incident thereto, the city council shall have authority to issue scrip, &c,, to an amount not exceeding in the whole the sum of $500,000.00. Held, that there was no limitation of the cost, and the city had implied power to expend sufficient to complete the work in a reasonable and proper manner. Foote v. City of Salem, 14 Allen, 87.
      The apparent conflict of opinion as to the validity of municipal contracts in excess of appropriation nearly disappears when the authorities are considered with reference to the nature and substance of the statute on which the question arises. The following authorities will afford a convenient clue to the subject, in addition to those cited by counsel.
      Opinion of Att.-Gen. Cushing in the Capitol Extension case, 6 Op. Att.-Gen. 26; Opinion of Nathan Clifford, 4 Id. 600; Cook v. Commissioners of Hamilton, 6 McLean, 112, 119; Guidet v. Mayor, &c., 10 Hun, 566; Milwaukee Harbor case, Hasbrouck v. City of Milwaukee, 13 Wis. 37; 17 Id. 366; 21 Id. 277; 22 Id. 397; 25 Id. 122.
      In so far as it is held in the last mentioned case, that the city is not liable without its assent to the legislation, the case is contrary to the settled rule here. People v. Flagg, 46 N. Y. 401; People v. Batchellor, 53 Id. 128.
    
    
      
       As to the requisite definiteness of a plan, see Wilson v. Lynn, 119 Mass. 174.
    
    
      
       See note at the end of the case.
    
    
      
       Where extra work under a mail contract was called for. the government claiming that no extra compensation could be claimed; and the contractors rendered it, insisting that they would be entitled to extra compensation; and Congress passed an act referring their claim, to determine whether any, and if so what extra compensation was due, with a direction as to the measure of damages, — Held, by the supreme court of the United States, that this was a recognition of the claim for extra compensation for extra work shown to have been done. Robert case, 11 Ct. of Cl. 98.
    
    
      
       The importance of this question is much enhanced by the fact, that under the new procedure numerous issues may be involved ffi the same case. In general, where the referee or jury finds the facts; the appellate court may give the appropriate judgment.
      It would seem that the principle of modifying by increasing when an increase results from the appellate court applying the law to facts correctly found is desirable, if not essential in cases, for instance of several causes of action, or of counter-claim. If the court of first instance, without error in its proceedings finds the facts on several issues, but in applying the law, errs and refuses to give judgment for a claim, or part of a claim, to which a party was entitled, the appellate court must either be entitled to increase the judgment within the limits marked by the verdict or other fi .dings of fact, or it must award a new trial of the facts which it has determined are correctly found, for the mere purpose of getting a new conclusion of law below which it can affirm. The only direct authority precisely in point sustains the power of the court to increase. Canaday v. Stiger, 35 Super. Ct. (J. & S.) 433, was an action by a vendor of houses and lots, to recover back from the purchaser an alleged over-allowance made in the price for incumbrances, the amount of which had been over-estimated. The purchaser set up a breach of an alleged implied covenant on the contract, for which he claimed nearly an equal sum against the plaintiff. The referee found as matter of fact, that each claim was substantiated, and found the amount of each. As matter of law he found, that defendant was entitled to recover for the alleged breach of covenant, and gave judgment for the difference. The appellate court held, that there was, in law, no such implied covenant, and if there was, it was merged in the deed. Consequently, plaintiff was entitled to recover without deduction. Monblu, J., said : “As the facts are all before us, and the amount which plaintiff should recover can readily be ascertained by computation, there is no need of a new trial.” They accordingly increased the judgment, and affirmed it as increased. The court of appeals, without discussing the power of the appellate court to do so, held, that it was right in adding to the judgment.
    
    
      
       Reported below in 5 Hun, 572.
    
   By the Court. — Neilson, Ch. J.

The appeal by the defendant brings up the question whether the referees erred in ordering the judgment that was entered ; the appeal by the plaintiffs, the question whether the referees should have directed judgment only for an amount equal to the unexpended part of the original appropriation, and if not, the further question whether we have the power to modify the judgment by ordering that it be increased to the sum found due.

We take up, as first in order, the case on the defendant’s appeal.

The legislature had imposed upon the permanent board of water and sewerage commissioners the duty of preparing and submitting to the common council of the city of Brooklyn a plan for furnishing an increased supply of water for the city, including such extension of the present works and the construction of such further reservoirs, conduits and other structures as might be necessary for that purpose, together with an estimate of the probable cost thereof, and directed them to acquire, in the name of the city, the title to such lands, ponds and streams as might be necessary (Laws of 1870, ch. 652).

A plan was prepared, submitted to the common council, and approved.

By another statute the commissioners were directed to carry that plan into effect, and to cause the necessary work to be done. The direction in the former act as to acquiring the necessary lands, &c., was repeated, and authority given to the city to issue bonds (Laws of 1871, ch. 47).

Before proceeding to contract for the work, and upon the advice of the chief engineer, Mr. Adams, the commissioners obtained from contractors estimates and bids for the different kinds of work proposed to be done, but the engineer advised the commissioners not to accept either of the bids, as the price charged for excavation was considered too high. He stated that the bid of Kingsley & Keeney was the lowest of the five estimates received, and that, if they would reduce the charge for excavation to fifty-five cents per cubic yard, the contract should be given to them; that their bid would then be $44,675 lower than that of either of-the other parties, and in that statement and recommendation, Mr. Kirkwood, the other engineer, concurred. The proposed reduction having been assented to, the agreement under which these plaintiffs have performed work and furnished materials, as found by the referees, was executed, under date of January 9, 1872.

The first question is as to the validity of that agreement.

There was no call for bids with a view to public competition, nor need there have been. A board of commissioners charged with the duty of contracting could do so as at the common law, save when expressly directed and restrained (Hobert v. City of Detroit, 17 Mich. 246; Miller v. City of Milwaukee, 14 Wis. 642). From the course of legislation with us, it appears that this board, in letting out work of this class, was under no prescription as to inviting competition. It is to be further observed that the acts of 1870 and 1871, before referred to, left the commissioners to contract, with such observances, and in such forms, as might be found expedient. That, in such a case, competing contractors need not be called in, was determined in Greene v. Mayor, &c. of New York (60 N. Y. 303). This view disposes of one element of the objection that changes were made in the specifications after the several proposals had been put in, and before the contract was signed. In the absence of fraud it is not, in a legal sense, material whether all the proposing contractors saw the specifications, as modified, or not. As the commissioners could legally enter into the contract without calling in competitors, they could do so without recalling them.

The charges of fraud, collusion, conspiracy and favoritism set up in the answer to impeach the contract and what was done under it, appear to have been duly considered by the referees. In their opinion they discuss the matter, and in their report find that there was no proof to support those charges. I have carefully gone over and analyzed the testimony and the papers in these appeal books, and sought to apprehend the force, effect and relation of the circumstances, and am satisfied that the referees were correct in the conclusion stated by them.

As the city could not, in the exercise of its inherent and implied powers, pledge its credit in acquiring and improving lands outside of the city limits, the legislative direction given was to be respected ; this contract so framed as to carry out substantially the purpose of the legislature. It was as the case of an agent acting on the instructions of a principal. As suggested by one of my brethren on the argument, a corporate authority to expend $1,400,000 would not support an agreement to pay $2,000,000, and the parties acting were bound to know the terms of the statute. In this point of view, it is material that the probable expense of the work, as estimated and reported by the engineer, including the cost of 300 acres of land at Hempstead, was $1,393,743, and that the work was let to the plaintiffs for a less sum. It further appears that, with the damages assessed and paid for the additional land, the whole expenditure, as proposed, was within the limit of $1,400,000. We have no means, nor had the referees, of revising those estimates, no evidence tending to show that the parties had reason to doubt their correctness.

As the arrangement for the work did not involve the exercise of power greater than had been conferred on the city, the contract was valid and could have been enforced.

The questions raised on the argument relate to what was done under the contract as well as to the contract itself. The learned counsel for the defendant claim that the plan approved by the common council, July 11,1870, should have been adhered to strictly ; that departures from and extensions of it were without authority. The land area in that plan having been fixed at 300 acres, it is not easy to reconcile the restrictive policy now suggested with the authority given by the act of 1871 to acquire, in the name of the city, the title to such lands, streams and ponds as might be necessary. Nor can we reconcile that policy with the extension of that land area from the 300 acres thus stated, to more than 500, including the so-called Nichols pond, now a part of the reservoir. The city acquired and paid for the increased quantity of land, and in resisting in the supreme court the plaintiffs’ application for an injunction, and in showing cause for a mandamus against the water board, prevailed by alleging that the title to the land had been duly acquired, and claiming the consequent right of possession. It is quite apparent that yet more land might have been taken under the act of 1871, had that been necessary. It would seem, therefore, that neither the legislature nor the city intended to adhere very closely to the plan of July, 1870. The extension of the land and of the water area may not have been of equal necessity or importance,- but the power and the election to do either deserve attention in considering the claim now presented on behalf of the defendants. That claim, if sound and enforced, would disaffirm the title of the city to the land except the 300 acres, as well as prevent a recovery for work done thereon, and would justify the reclamation of the money paid for what is now alleged to be an excess of labor and an excess of land.

The argument in support of a theory apparently so inconsistent and inequitable depends upon the sense in which the word “plan” is to be taken, upon the terms of the contract, upon the necessity there may have been for the changes and extensions made, and upon the relation of the city to the property and to the persons in charge of and directing the work.

It appears, from the proofs in the case, that several methods for securing an increased supply of water for the city had been proposed prior to the legislation to which we have referred. That of a storage reservoir was finally approved. That was the plan which the act of 1871 directed to be carried out, and the word plan, thus used, distinguishes this method from the other projects which had been suggested. The legislature intended that the title to the necessary land, 300 acres or more, should be acquired, that the Hempstead reservoir should hold one thousand' million gallons of water, .and taking the statute as it reads, cost not to exceed fourteen hundred thousand dollars. Of the mere details of the work and materials, how much of each and how applied, — matters depending upon practical skill and experience, — the legislature could not well have taken cognizance.

We might agree with the learned counsel for the defendant, if it were material, that a municipal corporation cannot be held on an implied undertaking. ' But here was an express agreement, So, too, if we overlook cases like the Harlem Gaslight Co. v. Mayor, &c. of New York, 33 N. Y. 309, and Muller v. The same, 63 Id. 353, we might agree that “the principle of quantum meruit cannot be applied.” But the prices for this work' were fixed, and the method of fixing the prices of extra work, if any, prescribed. So also, we accept the definition of the word “specification” as given on the argument. But the criticism is of no moment. The paper called a specification had been accepted by the board of city works, and by the common council, and incorporated in the contract. In it, the right to make changes was reserved to the city, and of new and substituted work there could have been no specific account or enumeration. There can be no doubt as to the legality of such a reservation, and of the plaintiffs’ covenant to carry out the work as directed. It was stipulating in the manner often found expedient between individual contractors. But it does not appear, from the proofs, that the changes in the work were made at the instance or by the procurement of the plaintiffs, and such is the finding of the referees.

According to the thirteenth section of the specifications, the dam at the southern end of the reservoir was to be placed on such ground as the engineer should direct. It was placed about 200 feet further south than had been at first contemplated. That added to the space within the reservoir, but not to the expense of construction. The same section provides for an intermediate dam, “ should such division dam be considered necessary.” It was not found to be necessary, and was abandoned, thus avoiding an expense of from $230,000 to $240,000, and, as the referees find, without prejudice to the reservoir. It was well that the questions as to the location of one dam and the building of the other were held for mature consideration. But had it been otherwise, the objections that dispensing with a useless dam, and removing the other to a better site than that first selected, were departures from the plan, would not be entitled to much respect.

The propriety, and, in an undertaking of this extended character, the necessity of reserving the right to make changes in the construction and work clearly appear in relation to the dam at the Nichols pond. That dam was to have been the northern boundary of the reservoir. It gave way, was repaired, gave way again, and was found to have no stability whatever. In his testimony, Mr. Probasco, the resident engineer, describes its rickety condition. It was liable to be swept into the reservoir by freshets. A deposit of “black muck” found in the pond, impure, if not poisonous, would also be swept into the reservoir. Thus it was that Nichols’ pond, by its own force and condition rather than by the election of the commissioners and of the engineers, became a part of the reservoir, and the excavations made by the plaintiffs, in obedience to the directions given and to the terms of their covenant, were necessary, if not unavoidable. That work was a mere incident to the construction of the reservoir, as much so as the removal of a landslide would be to that of a canal. It was fairly within the statute which directed that the necessary work should be done, and it would be a reproach to the law if the stipulated compensation could be withheld.

One of the most delicate, if not difficult questions arising in the course of the work had relation to the height of the new dam, and, of necessity, to that of the water to be held by it. In what is called the plan, the flow line, representing the surface of the water, the reservoir being full, was put at thirty-two feet above the tide. Many citizens, including Mayor Kalbfleisch, were apprehensive that the dam, built at the height required by that flow line, would not be safe. So, after much consideration by the engineers, the line was lowered from thirty-two to twenty-nine, the dam to be conformed to that reduction. The consequences were an increased amount of excavation at great expense, the saving of the cost of building a portion of the dam three feet high and fourteen hundred feet long,' the contributions of water from the springs reached by the deeper excavations, and the unquestioned benefit of a dam safer and more durable than it would otherwise have been.

The learned counsel for the defendants claim that the flow line was thus lowered three feet without authority, and that there should be no recovery for the extra excavations. We cannot accept that view. The general authority to make changes in the work would have been sufficient, but the thirteenth section of the specifications expressly provided that the dam should be constructed “in every way in accordance with his (the engineer’s) instructions,” and it is apparent that, to lower the dam at all, involved the necessity of having the flow line, or the surface of the water, lowered to the same extent. Then, too, that question was one which the engineer only could understand and properly determine.

All the changes made in the work have been fully stated and considered by the referees. After careful deliberation, we agree with them that “the chief engineer deemed each and every one of those changes to be necessary and proper, and in directing them to be made, he acted in good faith ; and none of the changes were directed or made with the intention of increasing the profits of the plaintiff's, or for the purpose of benefiting them in any manner;” that “the additions, omissions and changes did not, nor did either of them, change the substantial plan for furnishing an increased supply of water for the city of Brooklyn, adopted by the common council,” and that “none of the changes made by Colonel Adams, which the plaintiffs carried out under his direction, were outside of the plan authorized by the common council in such a sense as to defeat the plaintiff’s right to recover.”

We have had occasion to say that the contract was valid and could have been enforced. The case of Clark v. Mayor, &c. of New York, 4 N. Y. 338, would suffice to show that agreements in such form are not regarded with disfavor. It was there held that, in a contract as to a section of the Croton aqueduct, a public work, tlie right to make alterations in the form and dimensions of it could be reserved, and that the contractors were bound to carry out such changes, and might recover for the work done. In that case, as in this, the work had been stopped by the commissioners before its completion (See also, Slusser v. City of Burlington, 42 Iowa, 378, and Harrington v. Mayor of New York, 10 Hun, 248).

These plaintiffs were at work on the dam when they were directed to quit: in the expressive language of the referees, “were driven from it.” That order, which plaintiffs were bound to obey, as the city had the right to take possession of its property, was given under the erroneous impression that the money appropriated for the work had been exhausted. It would seem that the dam had been nearly completed. We take extracts, as to the state of the excavation and of the dam, from the deposition of Mayor Schroeder used before the supreme court, and, as matter of record, before the referees. Thus he says, “Thatsuch excavation is complete to the extent requisite to the holding of 1,000,000,000 of gallons of water, but the stone wall or dam has been erected to the height of only twelve feet,” . . . “ and all that is necessary in order to attain the object for which the said reservoir was constructed, and to develop its full efficiency, is to complete said stone wall or dam, which can be done at a cost not exceeding $20,000.” General Slocum, president of the board of city works, gave a like estimate of the cost. They were both speaking, no doubt, with reference to the reduced prices of labor in the market. In the contract which they afterward gave to Brady, he undertook to finish the dam, build the gate-house and other necessary works connected with the dam, for $22,799.60. At the time the plaintiff’s work was stopped there was more than $57,000 of the appropriation In the treasury, and other sums had been misapplied. It thus appears that at the prices fixed for the work by the contract, the money remaining for use was more than sufficient to have paid for completing the dam, and that, even on the theory that the expenditure should not exceed the appropriation, the defendant put an end to the contract without cause; in other words, elected to make default.

We are disposed to hold firmly to the distinction which exists between municipal and other corporations in respect to inferences or imputations of assent, adoption, ratification, and the like. But there are certain rules of conduct, principles so equitable as to command almost universal respect, worthy of observance by a municipal government. In contracting for, and carrying on the improvement in question, the corporate authority of the city was vested in the common council and the permanent board of water and sewerage commissioners. But, during the preparation for and the progress of this work, in the order of official succession, three distinguished citizens, neither of them wanting in experience or in zealous attention to public affairs, represented the city in its highest department. Moreover, the persons appointed to have supervision of this work, and whose directions the contractors were bound to follow — several competent engineers — were the agents of the city, and there never had been a time when the city, owning the land, could not have taken more immediate charge of the work with the same right as on the day when the contractors were dismissed. If the work imposed by the enforced inclusion of the Nichols pond was not to be paid for it would have been fair and seemly to intervene at an early day. The city could not, indeed, be estopped by its silent acquiescence, as the citizen might be, but there is a strong equity in favor of making compensation for work performed, as the referees find, in good faith, in pursuance of the agreement and of the exactions of the defendant’s agents.

The referees state that there was substantially no dispute before them as to the performance of the work and the furnishing of the materials, as claimed in the plaintiffs’ bill of particulars. On the argument before us one of the learned counsel for the defendant made a like statement, with the suggestion that, for that reason, a compulsory reference should not have been ordered. It is well known that the application to refer would not have been granted if it could have been foreseen that the case would be thus tried on the mere questions as to the liability of the defendant, or if a stipulation, admitting the account as stated, but reserving the other questions, had been filed. But the court was constrained to send the case to the referees, as the account for work and materials, and the amount thereof, were put in issue by the pleadings (See opinion thereon in 1 Abb. New Cas. 108).

The referees find that there remains unpaid to the plaintiffs on account of the work, after the deduction of payments, the sum of $167,799.77, irrespective of interest. That is a finding of fact, and cannot be regarded as against the weight of evidence. It was strictly in accord with the proofs, and we have no power to reverse it. It must, therefore, stand.

I am of opinion that, the referees were correct in stating the account of sums which were to be regarded as misapplied, and in the restorations thus made to the fund. They regarded that fund, the $1,400,000, as the limit of the appropriation for this work, and found, as a necessary result, that the judgment in this action could only be entered for the balance thereof remaining unapplied, with interest. The defendant prevails thus far, and that determination, in a strictly legal sense, was correct. We concur with the referees and with the defendant’s counsel in their construction of the act of 1871 in respect to the limit of the appropriation. Whatever ground of complaint the plaintiffs may have, regarding the amount of the judgment as inadequate, the defendant has no legal cause to complain. It cannot be said that the contract was ultra vires, as if it provided for an expenditure greater than the appropriation. If the limited amount of the judgment is not an answer to that objection, it cannot be said that the parties intended to evade the statutory limitation, or that the value of the entire work could have been anticipated. The mere circumstance that the account, as finally stated, exceeded the appropriation, does not tend to vitiate the agreement. The claim of the plaintiffs is not to be defeated because they did not complete the reservoir, if they were bound to do so, as they were ordered to desist. As between individual contractors, the builder would confessedly recover for his work up to that point; perhaps, also, for profits he might have made. The only distinction between the claim of these plaintiffs and of individual contractors, in such a case, is that the recovery here is limited to what remained of the appropriation.

I am of opinion that the act of 1875 (L. 1875, ch. 258), which authorized the city to issue its bonds to the amount of $500,000 for the completion of the reservoir, was a ratification of the prosecution of the work. The legislature recognized the existence of the reservoir in its unfinished condition, and made provision for its completion. This proposition is not affected by the fact that the bonds were not issued or the duty to issue them imposed in absolute terms.

The questions as to the supposed obligation of the plaintiffs to return money received, and as to the effect of voluntary payments, need not be considered.

After a careful examination we think that none of the exceptions were well taken.

As to the appeal of the plaintiffs, we have only to say that the provision of the code giving an appellate court power to reverse, affirm or modify a judgment appealed from, involves a limitation and does not authorize the increase of the judgment. We are of opinion that the power of an appellate court, as it had previously existed, has been restricted and qualified by that statute. The question is of great moment, and we do not feel at liberty to give the statute the construction claimed in support of this appeal. The judgment and order appealed from must be affirmed with costs.

McCue, J., concurred.

Reynolds, J.

[Dissenting]. — As I do not concur in the decision to be given in this case, it is, perhaps, proper that I should make a brief memorandum, stating in general terms the ground of my dissent.

The only authority for the construction of the work upon which the plaintiffs were employed, is to be found in the act of 1871, which provides that “it shall be the duty of the permanent board of water and sewerage commissioners of the city of Brooklyn, to proceed to carry into effect the plan for furnishing an increased supply of water for said city, and for such extension of the present water-works of said city, and for the construction of such further reservoirs, conduits, and other structures, as may be necessary for that purpose, heretofore submitted by said board to the common council of the city of Brooklyn, and approved by a resolution of the board of aldermen of said city on the eleventh day of July, 1870, provided, the whole expense thereof shall not exceed the sum of one million four hundred thousand dollars,” etc. To that end, the said board is authorized to acquire in the name of, and for the city of Brooklyn, title to such lands, ponds and streams, as may be necessary therefor, and upon the acquisition of the same to “cause the necessary work, to carry said plan into effect, to be done.”

It is plain that “the whole expense,” which is not to exceed the specified sum, is the entire cost, not only of acquiring the necessary lands, ponds and streams, but of constructing and completing the works authorized by the act. The plans referred to are to be “ carried into effect,” and unless the law be so construed as to require the finishing of the works within the limits prescribed, the proviso would be made of no effect.

The bearing of this will very shortly appear..

At the time the contract with plaintiffs was entered into, certain expenditures had been made out of the amount authorized and appropriated as above stated, including the sum of $110,000 for lands, ponds, and streams designed for the reservoir. When the plaintiffs entered into their contract, they were bound to take notice of the limitation upon the power of the city to contract with them, and of the condition of the fund at that time. They could not bind the city by any engagements contravening the law under which its officers and representatives acted. If the contract had stipulated for a gross sum as plaintiffs’ compensation for the construction of the reservoir, and that sum had been in excess of the appropriation, or of the part thereof then at disposal, thus in terms disregarding the limitation, it would have been illegal and the plaintiffs could not have enforced it.

Instead of that, it provided for the performance of certain itemized work at detailed prices, subject to the directions of the engineers of the water board. It also provided for extra compensation for haulage beyond a given distance, an item which turned out to be over $100,000 (See 23rd and 25th findings of referees), and for modifications and changes by the chief engineer during the construction of the work (See 15th finding).

It is obvious that under a contract so elastic, the possibilities were unlimited. The plaintiffs, having-contracted upon these terms, are responsible for the natural results that flow from them. According to the findings of the referees the results are these : The plaintiffs have already performed work and furnished materials, under and in pursuance of the contract, to the amount of $1,261,937.69. They have been paid on account, the sum of $1,094,137.92, leaving unpaid to the plaintiffs, on account of the work, the sum of $167,799.77. There remains unexpended of the appropriation, only $107,837.25, not enough to pay the plaintiffs by about $60,000, and yet, when the plaintiffs were stopped, the following work remained undone or incomplete, viz: Forty-seven acres of land within the original water area was unexcavated; the paving of the slopes of the dam embankment as required by the <ontract was unfinished; the paving of the slopes of the reservoir had not been done, the ground within the property-lines was not cleared, the ground was not graded where grading was necessary to a regular outline ; the work was not left in a neat and orderly condition; the rubbish, shanties and buildings erected during the progress of the work done, were not entirely removed or destroyed (See 29th finding). This work, the referees say, was so left undone or unfinished by reason of the directions given to stop and cease the excavations and the other work, and the action of the common council in taking possession of the work. The ground upon which this was claimed to be done, was that the appropriation was exhausted, and as the referees’ report shows, it was high time for the city to have made that discovery. If a contract containing in itself the germs of such fruits, so natural, if not inevitable, can be upheld, because it does not on its face, and in express terms, violate the limiting proviso, then it would be so simple and easy a matter to evade the statute, that the idea of its being a protection to the city was a complete delusion. It was only necessary to itemize the work, and the consequent uncertainties would overcome the resistance of the law.

It is no answer to say that the aggregate has been increased by reason of directions given by any of the officers or agents of the city; directions which they conld give, and which the plaintiffs had bound themselves to obey. The power that was given to the city or its representatives was limited by the proviso, and the plaintiffs could not, directly or indirectly, by their contract, put into the hands of the water board or its subordinates, an authority which the legislature had expressly refused to confer.

The referees hold that the plaintiffs must be limited in their recovery to the unexpended balance of the $1,400,000, so far giving effect to the limitation contained in the law, yet they award the plaintiffs the whole of that balance, leaving a very large and material portion of the work undone or incomplete. In this I think they were in error.

As we have seen, the statute required that the sum of $1,400,000 should cover the whole expense of carrying the work to completion. It seems to me, that it is as much a violation of the statute to use all the appropriation for a part of theworlc, as it would be to finish the work and exceed the appropriation. Of course, before the work can be completed a new appropriation must be made, and, in fact, legislative aid has already been invoked to that end. If the restriction in question is valid for the purpose of limiting the plaintiffs’ recovery, I cannot see why it should not prevent their recovering at all. By the present judgment the city is compelled to pay the full price of a completed enterprise for an unfinished work which it has upon its hands. To me this looks like nullifying the law.

It is claimed, however, that the act of 1875 ratifies whatever had been done in excess of authority previously given. The section from which this result is argued, is as follows:

“§ 1. Upon the approval of the plans, specifications and estimates therefor, by the common council of the city of Brooklyn, the board of city works of said city are hereby authorized to complete the Hempstead reservoir, and for that purpose the said' city is hereby authorized to issue such bonds as said common council may deem necessary, not exceeding $500,000 in amount; and no such plans, specifications and estimates, shall be approved, nor shall such work be done, except upon a stipulation, under suitable penalties, that the work aforesaid shall be fully finished and completed for the sum aforesaid.”

This recognizes the fact that the city has an unfinished reservoir upon lands which it owns, and is designed to meet the necessities of the case, by authorizing the city to raise money to complete it. It does not refer, even by implication, to any previous or then existing contracts, and I am unable to see how it can be construed into a ratification of such contracts, or a condonation of their illegality. The law simply regards the physical fact of an unfinished reservoir on city lands, and the absence of a fund to complete it. I have said it does not refer to contracts already made by the city. Perhaps, however, the latter part of the section, exacting a stipulation under penalties, that the work “shall be fully finished and completed” for the sum specified, was prompted by the fact that a former limitation had proved ineffectual. But this can hardly be considered a ratification of what the legislature was now attempting to prevent the repetition of, by additional guards.

With this view of a controlling principle in the case, it is not needful to discuss any of the other questions, especially such as might relate only to the amount of recovery.

Finding myself not in accord with my brethren, nor -with the report of the referees, I must, of course, distrust my conclusion ; and yet it appears to me so inevitable that I feel compelled to adhere to it, unpleasant as it is to differ from the weight of authority that goes with the judgment in favor of the plaintiffs.

NOTE on municipal contracts.

I. Necessity of inviting proposals (see p. 1).

The obligation to let to the lowest bidder does not exist unless imposed by express law, nor even then, according to the better opinion, is it an inflexible rule to be applied against public policy, upon a literal construction of the act, and beyond its apparent intent. The following recent cases, and the authorities referred to in them, illustrate the question:

Matter of Dugro, 50 N. Y. 513 (1872, opinion by Allen, J., all concurring). Although the charter of New York requires all work (over $1,000) to be let by contract to the lowest bidder, yet the ancient power of the city over the streets must not be impaired by doubtful construction; and if the city desire to use a patent pavement, the fact that advertising for bidders became necessarily an empty form, does not affect the validity of the contract.

To same effect, Hobart v. City of Detroit, 17 Mich. 246, 253, opinion by Cooley, Ch. J.

Bennett v. City of Jefferson, 21 La. Ann. 143 (opinion by Howe, J., 1869). The city of Jefferson has the right — under its general powers, conferred in the usual form, to control and improve streets, and raise the expense by tax or loan, — to lay a patent pavement; but when it proceeds under a clause allowing property owners to petition for an improvement to be made partly at their expense, provided that such work shall be done by contract by the lowest bidder, then they cannot adopt a patent pavement, for this precludes all real competition. The court say that the New York and Michigan cases rest on public policy, under a statute, which if literally pushed to the extreme, would cut off the cities from any patent however desirable.

Yarnold v. City of Lawrence, 15 Kans. 126, 131 (1875, opinion by Brewer, J., all concurring). Where the only provision of law as to advertising was, that before any contract for street improvements should be let, the city engineer should make and submit to the council an estimate of cost, and that in advertising for bids such estimate should be published (without expressly requiring advertising):—Held, that the city might contract without advertising; and if they advertised, were not bound to accept the lowest bidder.

County commissioners who are required by law to let to the lowest bidder, have no authority to proceed without making any plans, and require each bidder for the erection of a bridge to accompany the bid with his own plans and specifications, adopting such plans as they see fit and accepting the bid accompanying them, without giving others an opportunity to bid on the plans; and a contract awarded on such a letting, was held void, as opening the door to corruption, favoritism, and fraud. People v. Commissioners, 4 Neb. 150. In this case a statute providing that the commissioners may let to the lowest bidder was held mandatory.

Section 123 in the charter of Elizabeth of 1863, — which directs that all contracts for doing work, or furnishing materials for public works, exceeding $100 in amount, shall be advertised, and given to the lowest bidder, —is inconsistent with a resolution of the common council to use the Stow foundation pavement, and advertising for proposals for the same; because it is patented, and one firm has the exclusive right to use it in the city. State v. Elizabeth, 35 N. J. 351.

Where the common council of a city, having advertised for bids for paving a specified distance, subsequently entered into a contract with the lowest bidders to pave a portion only of the distance, “or further if ordered,” and after that was completed, ordered the remainder to be done by the same contractors, — Held, that the whole work was covered by the original contract, and it was not necessary to advertise for proposals a second time for the completion of the latter portion of the work. Brevoort v. Detroit, 24 Mich. 322.

Proposals for a public contract, and an acceptance of them by the government, may be held to constitute a complete contract, although they contemplated that a written agreement should be subsequently executed, which was not done. Adams v. United States, 1 Ct. of Cl. 192.

Under 1 L. 1870, p. 876, § 13, — which authorized the commissioner of public works of New York to cause water meters to be placed in certain establishments for the purpose of ascertaining the water rate, — the commissioner has power to contract independent of the requirements of the charter (L. 1870, p. 366, § 104), passed shortly before, requiring contracts made or let by the heads of departments to be by public proposal. People ex rel. Navarro v. Van Vorst, 64 Barb. 205. S. P., Greene v. Mayor, &c. of N. Y., 60 N. Y. 303; rev’g 1 Hun, 24.

“It is a sufficient objection to a naked unexecuted contract made by an officer of the government, that he has neglected to comply with the provisions of an act of congress which requires that advertisement for proposals shall precede the letting of the contract. But, after a party has entered into a contract with the government in good faith, and has so far performed his part of it, that to rescind it or declare it illegal and so incapable of execution, would subject him to loss and injury whilst the government would yet enjoy the benefit of his labor or expenditure, I do not think that such an irregularity can be set up against it. To allow the government, after it has derived the benefit of a man’s work or expenditure, under an honest contract made by a public officer within the scope of his authority, to avoid payment or to change its terms to his injury, on the technical ground that the contract was made without advertising for proposals, would be a far more intolerable violation of law than the neglect to obey the statutory direction. The magnitude of the injustice which such an application of the law would work, necessarily cures the original defect upon the maxim fieri non débet sed factum valet. See also opinion Attorney-general Cushing (6 Opin. 406). This principle is so obvious that it needs no other authority for its support than that which it finds in every honest man’s conscience.” Atty.-Gen. Bates, 10 Op. Att.-Gen. 422. Compare to the contrary, Donovan v. Mayor, &c. of N. Y., 33 N. Y. 293; rev’g 44 Barb. 180; Kingsland v. The Same, 5 Daly, 448.

As to changes where bids are required, see p. 2, ante, note.

,11. Power to malee changes in the plan or in the wo?de (see p. ).

In the case of the Milwaukee harbor, the statute authorized the city to construct a harbor, and required the common council to file accurate plans and let the contract to the lowest bidder ; and authorized them, after popular vote, to issue bonds therefor to the amount of $50,000. The contract reserved the right to the city to direct alterations or extra work. The city subsequently modified the plan, increasing the cost far beyond $50,000, and thereafter the legislature authorized them to issue such amount of bonds as might be necessary to complete the harbor, and this act the city accepted. Held, that it ratified their previous conduct in altering the plan. Hasbrouck v. Milwaukee, 21 Wis. 217, 235.

In the Rochester Sewer case, the commissioners of public works of Rochester passed an ordinance for “deepening and enlarging of Platt street sewer from, &c. to, &c. by enlarging that portion under said mill, constructing the tunnel under the race and deepening that portion of the sewer in Mill street and Platt street, to the west line on said street, said sewer to be not less than 7 feet square, and an arch cover, except that portion which is tunneled, and to be at least 25 feet deep at State street, &c.;” and ordered an assessment of $23,000, the estimated expense. They advertised for proposals accordingly, and one Spaulding made an alternative proposal, — one alternative being for a sewer through Mill and Platt streets, at $30 per foot; the other for tunnel under Mill and Platt streets, $35 per foot. After awarding the contract to him for an open cut and tunnel sewer for less than $19,000, they reconsidered their vote, and without further advertisement or ordinance awarded him the contract under the other alternative for a tunnel sewer under the streets mentioned. The change increased the expense about $4,000, but the aggregate was less than the estimate.

The supreme court held that the commissioners’ ordinance having provided for a cut or merely deepening of the sewer in the streets named, they could not afterward change the plan and award a contract in the same proceedings for a tunnel sewer, and hence owners of real estate liable to assessment could enjoin the proceedings. 5 Hun, 67.

The court of appeals reversed the judgment, holding that as the general purpose of the ordinance was for a sewer, the board had ample authority to contract in a mode different from that first adopted, although it increased the expense, especially as they did so on petition of parties liable to be assessed. 1876, Op. by Miller, J., all concurring, Lutes v. Briggs, 64 N. Y. 404; rev’g 5 Hun, 67.

A preliminary estimate of the cost of a street improvement, made for the purpose of determining who is the lowest bidder, will not prevent the city from assessing a larger actual cost on the property benefited, where the discrepancy is without fraud. In such assessment, the cost of neceesary surveying and improvement certificates, collection expenses, and interest may be included. The fact that a penalty to be incurred by the contractor for delay, has not been exacted from him, to reduce the cost of the improvement, will not invalidate the assessment, when the facts are such that the proper city officers may have honestly determined that such penalty ought not to be enforced. State v. Town of Guttenburg, 38 N. J. 419.

The inhabitants of a town voted to build a town-house according to a plan and specifications agreed upon, and appointed a committee to contract for and superintend the erection of the same, “with power to make any slight alterations in the plan, which should in their wisdom be deemed just and proper.” Held, that whether the authority given to the committee to make such slight alterations would justify them in employing an architect to draw plans for the purpose, was a question for the jury. The court in effect held, that if the intent of the resolution was to authorize them to modify the exterior, or the expenditure therefor, they might employ plaintiffs. Upjohn v. Taunton, 6 Cush. (Mass.) 310.

A municipal contract providing that the work shall be done under the direction of a city officer, implies that such officer may direct in regard to variations rendered necessary by the action of the city authorities. A consent to vary need not be by resolution, but may be implied. Messenger v. City of Buffalo, 21 N. Y. 196.

A municipal corporation forbidden by law to make any additional allowance beyond the legal claim under any contract with them, may nevertheless waive a forfeiture incurred by a contractor by not completing performance by the day named in the contract. People ex rel. Cunningham v. Brennan, 18 Abb. Pr. 100.

The plaintiff agreed to do the cutting and filling necessary to reduce a street to a certain grade, under tire direction and supervision of the defendant’s engineer. Held, that the contract referred to the decision of the engineer in determining the manner in which the work should be done, and that, if by his direction the plaintiff blasted to below the required grade, and then filled up to it, the city were to pay for all that work. Blake v. Dubuque, 2 Iowa, 492.

Where an application was “for re-opening a communication between Albemarle sound ... by the construction of a breakwater, ” Attorney-general Cushing advised that the breakwater was but an incident or means, and the approjrriation could be used without reference to whether a break-water was constructed or not. 6 Op. Att.-Gen. 19.

In the case of the Milwaukee harbor, held, that under the power of the harbor committee and city engineer to oversee and direct as to the best manner of executing the contract, a “protection work,” so-called, and apparently necessary to the economical building of the harbor, was within their power to direct, and the city were liable for a quantum meruit. Hasbrouck v. Milwaukee, 21 Wis. 217, 285.

Where a charter authorized the city council to construct sewers of such dimensions as they should prescribe by ordinance,' — Held, that an ordinance authorizing the construction of a sewer, “to be of such dimensions and of such materials as may be deemed requisite by the city engineer,” was invalid. St. Louis v. Clemens, 43 Mo. 395.

So, where a resolution of a county board of supervisors for the removal of the county seat, provided “suitable guarantees ” should be given for the erection of county buildings at the new location, free of cost to the county, was passed by a two-thirds vote as required by law, and the next day the approval of the guarantees was referred to a committee of the board by a majority, but not a two-thirds vote, — Held, that the resolution could not operate as an absolute authority for removal, until the condition was performed and suitable guarantees given, and that the board could not thus, by a mere majority, delegate its powers to determine what was suitable; and that, notwithstanding an acceptance of guarantees by the committee, the original resolution remained, as conditional as when passed. People 13. County Officers of St. Clair, 15 Midi. 85, lS^C, opinion by Christiancy, J.

Sections 62 and 64 of L. 1843 (R. S. Ind. c. 16), — which authorizes boards of county commissioners to enter into contracts in writing for building bridges over watercourses, and to appoint one or more persons to superintend the same, — do not empower such commissioners to appoint agents to make such contracts. Potts v. Henderson, 2 Ind. 327.

Where a contract is to deliver a specified quantity of lumber to the government, and the words “ more or less are added, with.no reference to any other method of determining more exactly the quantity intended, or removing the uncertainty, the parties will be held to a quantity approximate to that named, allowing only a variation reasonable under the circumstances. But when the words “more or less ” have a reference to something by which the exact quantity intended can be ascertained, and the uncertainty removed, then the words will limit or extend the quantity named to that which may be ascertained and determined by the reference. Brawley v. United States, 11 Ct. of Cl. 522. Compare Harrington v. Mayor, &c. of N. Y., 10 Hun, 248.

The power vested in the head of an executive department of the government, to make contracts for work or materials for the government, does not imply power to rescind or alter such contract when made. 9 Op. Att-Gen. 80.

Where the employer reserves to itself in the contract, the privilege of changing the plan, its making such a change does not necessarily entitle the contractor to cash payment in lieu of the mode pre scribed by the contract. Hasbrouck v. Milwaukee, 17 Wis. 266.

Power of the street superintendent to enlarge the time for the completion of a contract for street improvements. Conlin v. Seamen, 22 Cal. 546; Houston v. McKenna, Id. 550; Taylor v. Palmer, 31 Id. 240.

A building contract in writing contained a stipulation, that the employer reserved the right of making alterations in the plan of the work during its construction, the expense of which should be agreed on at the time; but that no extras should be allowed for, under any pretext whatever. Held, that the employer was not liable for the increased cost of the work, occasioned by alterations made by the builder, to which the employer assented, where there was no bargain as to the price of such alterations, according to the terms of the contract, and no express promise proved to pay the value of such work. Miller v. McCaffrey, 9 Penn. 245.

If a contract with a railroad company for constructing its road provides that the contractor shall not deviate from the contract, nor receive any pay for extra work, unless a written order for the same is made and signed by the engineer, the contractor cannot recover for extra work done on the verbal order of the engineer, even if there is another clause in the contract which provides that the engineer may direct alterations in and additions to the work. White v. San Rafael, &c. R. R. Co., 50 Cal. 417.

In an action to recover for labor and materials furnished under a contract to build four houses, which were destroyed before completion by the falling of a stone wall on another part of the defendant’s lot, — Held, that the contract itself implied an undertaking, on his part, that the place chosen was free from danger, unless the plaintiff had assumed the risk of danger from the condition of the property. If the loss was occasioned by an accident that could have been prevented by reasonable care, skill and expense, it should be borne by defendant. Sinnott v. Mullin, 82 Penn. St. 333. Compare School Trustees of Trenton v. Bennets, 27 N. J. L. 513; Dermott v. Jones, 2 Wall. 1.

Where a contract provided that the claimants shall erect shops,' sheds, &c., for the defendant’s workmen “ on the written order and under the direction of the party of the second part,” (the supervising architect of the treasury), — Held, that it was not enough, in an action on the contract, to allege that certain barns, boarding-houses, &c., were erected for the defendant’s workmen, “.with the full knowledge and consent of the officers of the United States, and upon their requirement, and were necessary,” &c. Dix Island Granite Co. v. United States, 12 Ct. of Cl. 624.

Plaintiff claimed to recover for rock excavation made outside the lines of the street, in sloping the sides, which the referee found to have been necessary to effect the excavation within the street. Held, that the outside excavation was not included in the contract, and as it was only necessary as a means for accomplishing the work contracted for, plaintiff was not entitled to recover therefor. Voorhis v. Mayor, &c. of New York, 62 N. Y. 498.

A made a contract to execute certain “excavation, refilling and repaving,” for B, and B agreed to pay as a “ compensation for such excavation, refilling and repaving,” as follows: “for executing the digging” and refilling, seven cents per cubic yard; and for repaving &c., four cents per square yard. A considerable portion of the work was through hard-pan and rock, worth from seventy-five cents to one dollar per cubic yard; while seven cents was the lowest price for excavating common earth. Held, nevertheless, that A could recover nothing beyond the contract price, and that extrinsic evidence was not admissible to prove the value of excavating hard-pan and rock. Sherman v. Mayor, &c. of New York, 1 N. Y. 316.

The plaintiff entered into a written contract to make excavations, and commenced work, but afterwards gave notice to the defendants that he could not go on at the price named in the contract, and must abandon the work unless defendants would allow him more than the contract price for a portion found extra difficult. The defendants told him to quit that portion of the work until some arrangement could be made in regard to it; and the plaintiff did quit it for about two weeks, when it was" resumed under a new agreement, by which the plaintiff was to receive a reasonable compensation for excavating the hard material. Held, that this was such a rescission of the original contract in respect to that portion of the work, as would have precluded the defendants from maintaining an action to recover damages for its non-performance, afterwards. The new agreement was binding, and must control. Hart v. Lauman, 29 Barb. 410.

Where the plaintiff contracted in writing “to excavate and build a good, firm, and substantial sewer,” specifying particularly the prices to be paid for “all the excavation, whether hard-pan, quicksand, caves or otherwise, and “for the blasting and removing of rocks,” and claimed in this suit extra payment above the contract pi’ice, which he admitted had been paid, — Held, that no evidence was admissible to show that extra work had been done, or to show that it was rendered necessary by the discovery on the line of the sewer of a kind of rock not before known in New York, and much more difficult of removal than those usually found, and of a quality which could not possibly have been contemplated in making the contract. Devlin v. Mayor, &c. of New York, 4 Duer, 337.

The original plan for a piece of work was abandoned, and a new one adopted, which increased the expense to such a degree that the original plan could not be followed as a guide, even to the extent of the expense estimated on such original plan. The contractor, in making his estimates, acted under the directions and with the knowledge of the employers. Held, that it was not necessary for the contractor, in order to recover, to show what work and materials were embraced in the original contract, and what was extra work. Hasbrouck v. Milwaukee, 31 Wis. 217, 235.

III. Ratification or estoppel (see p. 5 ).

§ The general principle of implied contracts, and of ratification by express assent; or by acts or conduct inconsistent with any other supposition than an intent to adopt and own the act, is equally applicable to municipal corporations as to individuals (Peterson v. Mayor, &c. of N. Y., 17 N. Y. 453; 1 Dill. Mun. C. § 385), except where it is invoked’to supply an absolute want of power in the corporation. The distinction is this: — -Want of power in the officer cannot be supplied by an estoppel against the officer, nor by a ratification by him ; and want of power in the corporation cannot be supplied by estoppel against it or ratification by it. But if the corporation had power, want of its delegation to the officer may be supplied by estoppel or ratification drawn from the conduct or silence of the corporation. See Brady v. Mayor, &c. of N. Y., 20 N. Y. 312.

The foundation of the exception is that statute restrictions and inhibitions cannot be evaded by resorting to estoppel by assent of officers, &c. McDonald v. Mayor, &c. of N. Y., 68 N. Y. 23; Inhabitants Weismer v. Village of Douglas, 64 N. Y. 91. Unless the city has actually collected the fund which equitably belongs to the contractor. Nelson v. Mayor, &c. of N. Y., 63 N. Y. 535; rev’g 5 Hun, 190. Where it had power to act, a municipal corporation may estop itself like other parties to a contract. County of Randolph v. Post, 93 U. S. (3 Otto) 502, 513, and cases cited. Even the State and its agents may be estopped. Peck v. Burr, 10 N. Y. 294.

The distinction is, perhaps, best illustrated in two recent California cases. In Argenti v. San Francisco, 16 Cal. 255; cited in 63 N. Y. 544 (1860, opinion by Cope, J., and Field, J., concurring in the result), it was held that a municipal corporation having had the benefit of a contract for work and materials, could not, in an action founded on the contract, contest its validity, on the ground of want of delegated authority in the officer who made the contract. The court concede that an executory contract made without authority cannot be enforced, but say that a different question arises where the contract has been executed and the corporation has received the benefit of it. In such a case they held that the law interposes an estoppel and will not permit the validity of the contract to be called in question. It appeared in that case that the improvements, — the grading and planking of certain streets, — were constructed for the exclusive benefit of the city and its inhabitants ; that they were of valuable and permanent character, and constructed in pursuance of contracts entered into with an officer of the corporation in his official capacity; that in making the improvements reliance was placed on the validity of these contracts, and the obligation of the city to pay as provided, and that the improvements were made under the immediate supervision of an officer of the city government, and when completed were approved of and received by him on behalf of the city ; that the city .authorities were fully informed of the facts, and took no steps to repudiate the contracts or enlighten the plaintiff as to the disposition of the city to pay, until the city had received all the benefit to be derived from their performance.

Reld, that although there was no evidence that the agent who signed the contracts was expressly authorized to do so, the knowledge and silence of the city authorities was equivalent to a direct sanction (reviewing and relying on the New York and California authorities).

Field, J., was of opinion that as the charter vested in the common council the authority to order the improvements, and a general ordinance had designated the officer under whose supervision on behalf of the city the work should be done, and an ordinance had indicated an intent of the common council to make the improvements, and advertisement was made, proposals received, and the work awarded, the question whether the officer executing the contract on the part of the city had authority, was of no moment; the contractor, having performed as if there had been a formal contract, could recover.

In Zottman’s case, 20 Cal. 96 (1862, opinion by Field, J., Cope, J., concurring), held that where a charter prescribes a mode in which all contracts shall be made, by ordinance requiring bids, a contract made in any other way cannot be made valid by ratification or acceptance of the work. In this case, a construction contract having been made, the superintendent under whose supervision it was required to be performed, and the special committee of the common council to whose satisfaction it was to be completed, found that extra work would be necessary, and accordingly ordered it in presence of various members of the city government, and the work was done to the knowledge of the common council.

Reid, that no ordinance authorizing the extra work having been proved, the contractors could not recover for it. Their employment with knowledge of the common council, and the fact that the corporation had received the benefit, could not create liability against the statute.

This conclusion was established by Field, J., in accordance with his views in Argenti v. San Francisco, 16 Cal. 255, and (in so far as the two are inconsistent) overruling that case with the concurrence of Cope, J., who withdrew from his former opinion and concurred with Field, J. 
      
       In Miller v. Milwaukee (14 Wisc. 643, [1861]), opinion by Dixon, Ch. J., it was held that the general powers possessed by municipal corporations at common law, these words occurring in the defendants’ charter, was sufficient to authorize it to contract to build a breakwater to preserve certain streets from being destroyed by the action of the waters of the lake. — Dixon, J., says :
      “We are of opinion that the counselors and aldermen possess the power, and that it was rightly exercised. Municipal corporations are instituted for the advancement and regulation of trade, the local administration of justice, and the better government of their particular vicinities. And for these purposes they are by the common law invested with the power of making- ordinances and by-laws. Willcock on Mun. Corp. 16 (12 Law Library, 10). They may also elect, govern, and remove their members, and regulate their franchises and property. Id. 298 (12 Law Library, 164). They possess power to lay out, open and repair streets and highways, to establish companies to protect the property of the citizens from destruction by fire, and to levy taxes to defray the expenses.”
      In Sturtevant v. Alton, 3 McLean, 393 (1844, opinion by McLean, J.), — Held, that a municipal corporation having power to grade streets, has necessarily power to make contracts respecting the same and every incidental power necessary thereto.
      In Rome v. Cabot, 28 Geo. 50 (1859, opinion by Lumkin, J.),— Held, that the construction of water-works is within the general power conferred on a municipal corporation to make all contracts which they deem necessary for the welfare of the city.
     
      
       Where, under the provisions of a city charter, a contractor is only payable out of a particular fund, the city will be liable to him if that fund is misappropriated by the common council. Lansing v. Van Gorder, 24 Mich. 456. And see 6 Id. 51.
      A warrant for the payment of a sum named, “out of money in the treasury not otherwise appropriated,” — Held, to mean that the payment should be made out of money not appropriated to special purposes, and that the creditor need not show that there was money in the treasury, before suing, as the county was liable, whether there was any there or not. Campbell v. Polk, 3 Iowa, 467.
      Where money belonging to the drainage fund of a town has been paid to the treasurer thereof it continues to be in the town treasury in contemplation of law until legally paid out therefrom; and the fact that the supervisors had used it, without legal authority, for another purpose, before entering into a contract for drainage, will not relieve the town from liability on such contract. Holil *. Westford, 83 Wis. 334.
     
      
       Where a contractor to erect a public building, after the dismission of the committee through whom the contract was made, and a rescission of the order appointing it, and notice by the justices not to go on with the building, still continued to act under such committee, and, by its direction, made material departures from the specifications of the contract, — Held, that lie forfeited his right to recover the price agreed on in the contract. McCoy v. Harnett, 8 Jones (N. C.) L. 272.
     
      
       Other cases heretofore referred to, it will be seen, do not sustain the view that a municipal contract is void as ultra vires, because it requires more money than had been appropriated; and this could not be justly sustained because the contractor would then be liable to repay everything that he had received from the beginning; if there be a prohibition on exceeding a certain entire cost, the contract may be ultra vires as to the excess. See also Jackson County v. Hall, 53 Ill. 440.
     
      
       To same effect, Hasbrouck v. Milwaukee, 21 Wisc. 217, 235.
     
      
       As to uncompleted work, see Penn Township v. Perry Co., 78 Penn. St. 457.
     