$ 67 50 administrator can be sued for a breach of [terest, from June, 1, 1909. The suit was incovenant by the domiciliary executor that stituted to recover for work done and mateoccurred after the decedent's death. This rials furnished as follows: question, however, is not presented by the Nov. 4, 1908. To installing light feeder conpresent record. duit under sidewalk...... Dec. 9, 1908. To installing power feeder conduit under sidewalk...... Oct. 15, 1909. To repairing damaged wiring in roadway Dec. 1, 1909. To repairing motor generator To one pole tester..... Dec. 28, 1909. To installing power feeder The error in striking out the second answer led to a trial on immaterial issues, and thus affected the whole case. For this error the judgment must be reversed, and the record remitted for a new trial. (90 N. J. Law, 273) FRANK V. BOARD OF EDUCATION OF JERSEY CITY. (No. 25.) (Court of Errors and Appeals of New Jersey. March 5, 1917.) (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS 248(1), 249LIABILITY FOR Work and MATERIALS-UNAUTHORIZED AGENCY. A municipal corporation may be liable for work done and materials furnished it by an unauthorized agent, when the contract for such supplies is one that is within the scope of its corporate powers. An agency in such a case may, by implication, be created in fact, by the conduct or acts of the parties, and the contracts of such an agent may, by like conduct and acts of the parties, be by implication ratified by the municipality. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 684, 697, 853.] Gummere, C. J., and Parker and White, JJ., dissenting. (Additional Syllabus by Editorial Staff.) 2 WORDS AND PHRASES-"EMERGENCY." An emergency is a sudden or unexpected occurrence or condition calling for immediate action (citing Words and Phrases, Emergency.] Appeal from Supreme Court. Action by Eugene Frank against the Board of Education of Jersey City. Judgment for plaintiff, and defendant appeals. Affirmed. John Bentley, of Jersey City, for appelM. T. Rosenberg, of Jersey City, for respondent. lant. If BLACK, J. [1] There is but a single question presented by the record in this case to be answered, viz. whether a municipal corporation is liable to pay for work done and materials furnished it, by an unauthorized agent, when the municipality had the power to make a contract for such purchases. so, whether an agency to purchase such supplies in fact can be implied from the acts and conduct of the parties and a ratification of the contract for such supplies be also implied from like acts and conduct. The application of elemental and well-recognized principles in the law of agency, to the facts, as disclosed by the record in this case, leads us to answer these questions in the affirmative. The case was tried at the circuit, on an agreed statement of facts, resulting in a judgment against the board of education of Jersey City for the sum of $684.30, with in ....་ 67 50 40 00 46 70 5 00 The facts on which the ruling of the trial court was based are these: The above work and materials were actually furnished by the respondent to the appellant by order of John T. Rowland, Jr., supervising architect of the appellant, except two items. He had been permitted by the appellant "for a number of years" to order labor and materials of the His orders nature sued for in this case. had been recognized by the appellant, and the amounts therefor had been paid by it. "Many previous orders of the same kind were duly paid for by the defendant" furnished by the respondent. The item of $46.70, for repairing motor generator, was for labor, which was furnished by the respondent to the appellant by order of Charles C. Wilson, vice principal of the Jersey City High School, which was under appellant's control. All the items except the item of $5 for one pole tester were "emergency" work; 1. e., they were furnished at the time the emergency existed, requiring immediate performance, and before a meeting of the appellant could be held, to pass upon the necessity of doing the same and ordering it to be done. The respondent had done other work and furnished materials of a similar character for the appellant under and by similar orders. Such work had been regularly paid for, in due course, by the appellant, when the bills for the same were presented without question as to the regularity of the requests or the authority of the said Rowland and Wilson. The work done and materials furnished, sued for in this suit, were done and furnished, relying on the fact that previous orders by Rowland and Wilson, under similar circumstances, had been paid for by the appellant. The respondent knew that this practice existed and was permitted to exist by the appellant. This practice had been so "for a number of years." The appellant knew that the work and materials had been furnished it by the respondent at or about the times they had been so furnished, and it did not, until three years after the last work had been performed, deny the authority of the said Rowland and Wilson to order the work and materials. The appellant has had the use and benefit of the work SO done and materials furnished. The amounts charged are the usual amounts for such work and materials, and are reasonable charges. The item of $5 for one pole tester represents the loss or damage to a glass instrument, known as a pole tester, injured by the employés of the appellant. Wilson directed the respondent to present his bill therefor to the appellant, stating that it would be paid. Bills in due form of law, under oath, were presented by the respondent to the appellant before this suit was instituted. It is quite clear the facts of this case substantially distinguish it from the cases decided by this court, viz., New Jersey Car Spring, etc., Co. v. Jersey City, 64 N. J. Law, 544, 46 Atl. 649, and Jersey City Supply Co. v. Jersey City, 71 N. J. Law, 631, 60 Atl. 381. ers of Atlantic, 82 N. J. Law, 82, 81 Atl. 358, to a recovery for the price of lumber sold and delivered to the county of Atlantic for the reconstruction and repair of bridges. The contract for such lumber having been made by an unauthorized agent, but was one which the corporation could lawfully make. It was also held that such a contract may be ratified by implication. This court, in the case of New Jersey Car Spring, etc., Co. v. Jersey City, 64 N. J. Law, 544, 46 Atl. 649, held such a contract can be expressly ratified by the municipal authorities. See, too, Green v. City of Cape May, 41 N. J. Law, 45. [2] In the case under discussion, the school law of the state, session of 1903, found in P. L. 1903, p. 5, § 47 (4 C. S. of N. J. p. 4740 et seq.), provides that the board of education in a city school district such as Jersey City is vested with the power of making contracts in and by its corporate name, and by section 50 every such board shall have the supervision, control, and management of the public schools and public school property in its district. It may appoint a superintendent of schools, a business manager, and other officers, agents and employés, as may be needed. Section 52 provides the board may at any time order repairs to school buildings to In the first case the suit was instituted to recover for three bills of goods furnished, viz.: January 3, 1894, $270; June 30, 1894, $130.19; April 30, 1895, $280.05. The first bill, by a formal resolution of the street and water commissioners, dated April 2, 1894, was ordered and directed to be paid. The court held the city was not liable for the last two bills, as the goods were requisitioned by subordinate officers without authority an amount not exceeding $500, may authorize from the board. The goods were not knowingly accepted or used by the board. That case did not involve the question of an express contract, nor the question of how an agency might be created. the purchase of supplies to an amount not exceeding $250, without advertisement. Section 72 provides for a business manager, who shall supervise, if there be one, the construction and repair of all school buildings, and In the second case the requisition of the shall report monthly to the board of educagoods by the president of the board of fire tion the progress of the work; that repairs commissioners was not previously authorized not exceeding the sum of $100 may be orby the board and approved or acquiesced in dered by the business manager, and repairs by the mayor, as provided by the statute. not exceeding the sum of $500 may be orThe agreed statement of facts set forth in dered by the committee of the board having terms that the goods were "used by the city," charge of the repair of school property, withand this expression furnished the chief sup-out the previous order of the board and withport for the contention in the case that the out advertisement. In this statute, as will municipal corporation was liable upon an be seen, there is express authority for the implied undertaking to pay for them, but the court held there can be no implied contract in defiance of express restrictions imposed by law. In that case the authorized agents were subject by law to restrictions, with respect to the subject-matter and to the form and method of contracting. They were limitations upon the power itself. appointment of an agent, a business manager. The term is immaterial. A supervising architect or vice principal might just as well be called an agent or business manager. There is also the recognition by the Legislature of the fact that the board of education probably could not act in many cases, without appointing such agents, since the This case is differentiated from those cases very necessity of some cases requires that by the facts in essential points. It is not such a board should act through agents. But simply a distinction without a difference. even this would not dispose of the two main Those cases were rightly decided. They items of $228.80 each. There is no evidence stand upon a firm legal foundation. The rule tending to show, and it is not even pretended, of law to be applied to this class of cases that all these various items, amounting in is stated by our Supreme Court thus: The the aggregate to $684.30, can be treated as rule of law is that it is only when the cor- one contract, so as to bring the amount above poration has the right to enter into the given the $500 limitation permitted by the statute contract that it can legalize it after it has for repairs of school property without the been performed under an authority of its previous order of the board and without unauthorized agents. Cory v. Freeholders of advertisement. It would be quite impracSomerset, 44 N. J. Law, 455. That rule ticable to require either a formal resolution was subsequently applied by the Supreme for every possible small expenditure or for the state of facts these orders under consideration are called "emergency" orders. The dictionary definition of emergency is a sudden or unexpected occurrence or condition calling for immediate action. 3 Words and Phrases, p. 2361. the scope of his real and lawful authority, or he The same rules apply to municipal corporations acting within the limits of the powers conferred upon them by the Legislature as to other corporations or private persons. Clark v. City of Washington, 12 Wheat. 40, 6 L. Ed. 544; Mayor, etc., of Jersey City v. Harrison, 71 N. J. Law, 69, 58 Atl. 100, affirmed 72 N. J. Law, 185, 62 Atl. 765, 65 Atl. 507. The remark of Mr. Justice Collins, in the case of Wentink v. Freeholders of Passaic, 66 N. J. Law, 67, 48 Atl. 609, is pertinent: need look to is the power to make the ostensible "All that he [i. e., the vendor or contractor] contract." On this point, see Armitage v. Essex Construction Co., 87 N. J. Law, 134, 94 Atl. 51, affirmed March 6, 1916, 88 N. J. Law, 640, 96 Atl. 889; 28 Cyc. 667b, 675. The literature of the law of agency is rich in adjudged cases. The principles pertinent to the subject under discussion are these: An agency, as between individuals or business corporations, may be implied from prior habit, or from a course of dealings of a similar nature between the parties. Fifth Ward Savings Bank v. First National Bank, 48 N. J. Law, 527, 7 Atl. 318; Gibson v. Snow Hardware Co., 94 Ala. 346, 10 South. 304, 2 Corp. Juris, 435, 441; 31 Cyc. 1217 (II); 1 Mechem on Agency (2d Ed.) § 708. The agency may be implied from the recognition or acquiescence of the alleged principal as to acts done in his behalf by the alleged agent, especially if the agent has repeatedly been permitted to perform acts like An implied agency is an actual agency. the one in question. Murphy v. Cane, 82 N. It is a fact to be proved by deductions or J. Law, 563, 82 Atl. 854, Ann. Cas. 1913D, Inferences from other facts. 2 Corp. Juris, 643; 2 Corp. Juris, 443, § 40. But when it 435, § 32; Id., 444, § 42. This is quite differis implied, and in so far as it is implied, the ent from agency by estoppel, as has been power of the agent must be determined from pointed out. Agency by estoppel should be no one fact alone (New Jersey Car Spring, restricted to cases in which the authority is etc., Co. v. Jersey City, 64 N. J. Law, 544, 46 not real but apparent. Morris v. Joyce, 63 Atl. 649), but from all the facts and circum-N. J. Eq. 555, 53 Atl. 139; Blake v. Domestic stances for which the principal is responsible (2 Corp. Juris, 570, 577, § 218). So ratification may be implied from any acts, words, or conduct on the part of the principal which reasonably tend to show an intention on the part of the principal to ratify the unauthorized acts or transactions of the alleged agent (Strauss v. American Talcum We think, as the board of education had Co., 63 N. J. Law, 615, 44 Atl. 631; Small the power, under the statute, to contract for v. Housman, 208 N. Y. 115, 123, 101 N. E. the work done and material supplied in this 700), provided the principal in doing the acts case, there was created by conduct an imrelied on as a ratification acted with knowl-plied agency, an agency in fact, on the part edge of the material facts. Metzger v. Huntington, 139 Ind. 501, 520, 37 N. E. 1084, 39 N. E. 235; 1 Mechem on Agency (2d Ed.) § 395. The rule is particularly applicable, where it appears that the principal has repeatedly recognized and affirmed similar acts by the agent. 2 Corp. Juris, p. 489, § 109; 31 Cyc. 1219. So a municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the scope of the corporate powers, but not otherwise. Dillon on Mun. Corp. (5th Ed.) §§ 463, 797; 6 McQuillin on Mun. Corp. § 2656; Green v. City of Cape May, 41 N. J. Law, 45; 28 Cyc. 675. Mfg. Co., 64 N. J. Eq. 494, 38 Atl. 241; Pettinger v. Alpena Cedar Co., 175 Mich. 162, 166, 141 N. W. 535; Columbia Mill Co. v. Nat. Bank of Commerce, 52 Minn. 224, 229, 53 N. W. 1061; 31 Cyc. 1219 (B). Agency by estoppel has no proper place in the law of municipal corporations. of Messrs. Rowland and Wilson, and further, that by implication the contracts of these unauthorized agents have been ratified by the acts and conduct of the school board; hence it was not error for the trial court to direct a judgment in favor of the respondent and against the appellant. The judgment will therefore be affirmed, with costs. GUMMERE, C. J., and PARKER and WHITE, JJ., dissenting. (90 N. J. Law, 151) SHOLES V. EISNER et al. (No. 82.) (Court of Errors and Appeals of New Jersey. March 5, 1917.) (Syllabus by the Court.) There can be no legal distinction in the method by which an agency may be created by implication for an individual and a municipal corporation. In both cases they stand on the same footing. Thus in Dillon on 1. ARREST 56-EVIDENCE-CIVIL ACTIONSMun. Corp. (5th Ed.) §§ 445, 775, it is stated: "In cases of public agents, the public corporation, it is said, is not bound unless it manifestly appears that the agent is acting within LIABILITY ON BOND. Because the plaintiff did not produce affirmative proof that his judgment debtor, who petitioned for discharge under the Insolvent Debtors' Act (2 Comp. St. 1910, p. 2824 et seq.), did not appear in person at every subsequent court | next term of the Mercer pleas after the giving until discharged, the motion to nonsuit should of the bond was the January term, 1915. have been granted, and failing that-this lack of evidence not having been supplied in the Markowitz duly appeared and petitioned. further progress of the trial-the motion to The breach alleged is that: direct a verdict should have been granted; and therefore the direction of a verdict for the plaintiff was erroneous. [Ed. Note.-For other cases, see Arrest, Cent. Dig. 88 131-140.] 2. ARREST 56-BOND-DISCHARGE OF SURETIES. "The said Benjamin Markowitz named in the said bond did not appear in person before the court of common pleas holden in the county of Mercer, during the May (1915) term thereof, as provided therein.' This was denied by defendants' answer, The defendant having appeared at the term and the only evidence offered by plaintiff to of the common pleas court next after presenting prove the alleged breach was the offer of the his petition, and having been then and there minutes of the common pleas, which containexamined, and the court, which could haveed no entry or record to show whether or granted his discharge within that term, held the matter under advisement until a subsequent not Markowitz appeared before that court term and then granted it, the discharge, when during the May (1915) term. so granted, operated to discharge the debtor's sureties on the bond, because the court could not lawfully have granted the discharge unless it were satisfied that the debtor's conduct had been fair, upright, and just, which, perforce, must include compliance with the terms of the act which alone would entitle the debtor to his discharge, and which, the discharge, neces-amination were duly had. This lack of evisarily presupposes that there had been no breach of the condition of the bond. [Ed. Note. For other cases, see Arrest, Cent. Dig. 88 131-140.] · BOND DISCHARGE OF 3. ARREST 56 [Ed. Note.-For other cases, see Arrest, Cent. Dig. 88 131-140.] 4. PRINCIPAL AND SURETY 118 DISCHARGE OF PRINCIPAL-EFFECT. It is a general rule that the discharge of the principal works a discharge of the sureties ou a bond. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 286-295.] Appeal from Supreme Court. Action by Anna E. Sholes against Leo Eisner and others, sureties for Benjamin Markowitz in a bond given under the Insolvent Debtors' Act. Judgment for plaintiff, and defendants appeal. Reversed, and venire de novo awarded. James & Malcolm G. Buchanan, of Trenton, for appellants. James J. McGoogan, of Trenton, for respondent. The minutes were kept by various persons and were shown to be incomplete, for they contained no entry of the appearance and examination of the insolvent debtor on his petition, although such appearance and ex dence was not supplied in the further progress of the trial; yet the court denied the defendants' motion to nonsuit and to direct a verdict for defendants, and, on the contrary, directed a verdict for plaintiff. All of which was erroneous. The defendants adduced testimony tending to show that Markowitz had in fact appeared in person at the May, 1915, term of the common pleas; and, also, adduced testimony tending to prove a waiver and abandonment by plaintiff of her right to require the further appearance of Markowitz in the insolvency proceedings. But in our view of the case it is not necessary to consider these questions of evidence. As already stated, the next term of the Mercer pleas after the giving of the bond was that of January, 1915, at which it is admitted Markowitz appeared and presented his petition for discharge and was examined. It is also admitted that the Mercer pleas on February 18, 1916, made an order discharging the insolvent debtor in customary form, and on the same day appointed an assignee for him, and that he (the debtor) thereupon made a deed of assignment to the assignee. [2] The act for the relief of persons im WALKER, Ch. This case comes here on an appeal by defendants-appellants from a judg-prisoned on civil process, commonly called the ment of the Supreme Court, in favor of the plaintiff-respondent. The grounds of appeal are: (1) The refusal of the trial court to nonsuit the plaintiff; (2) the refusal to direct a verdict for defendants; (3) the direction of a verdict for plaintiff. insolvent debtors' act (Comp. Stat. p. 2824), provides in section 11 that if the court, after hearing, shall be satisfied that the conduct of the debtor has been fair, upright, and just, it shall proceed to appoint one or more assignees to whom the debtor shall forthwith execute an assignment of all his real and [1] The action was brought by plaintiff for the alleged breach of a bond under the in-personal estate, etc., and, upon making which solvent debtors' act, made by defendants as sureties for Benjamin Markowitz. The bond was given December 17, 1914, and was conditioned inter alia that Markowitz should appear before the then next common pleas court of Mercer county and petition for the benefit of the act, and appear in person at every subsequent court until discharged. The assignment and filing the same, the court may direct the sheriff to discharge said debtor from confinement on account of any debts by him previously contracted. It is provided in section 3 that any person arrested on process of execution, etc., as provided in section 2, having given bond as therein provided, shall be entitled to make application for his 1903, but was not filed in the clerk's office until November 30th following; it having apparently been retained in the possession of the judge during the intervening period. The common pleas overruled the objection, and at the close of the hearing made an order that Harding be discharged. After certiorari proceedings, in which the order of discharge was set aside in the Supreme Court with direction that the bond should be taken from the files for prosecution, that judgment was removed into this court on error, and Chief Justice Gummere, writing the opinion, observed, at page 551 of 71 N. J. Law, 60 Atl. 403, that, after the presentation of the petition, the judge who was sitting should, within a reasonable time, have deposited it in the office of the clerk, where the records and files of court were kept, but that the failure of the judge to do that was something for which Harding was in no way responsible, and that the common pleas court very properly refused to punish Harding for its own failure to deposit the petition. The doctrine of this case clearly extends to the one at bar. Markowitz, the insolvent debtor, certainly had a right to presume that his application would, within a reasonably short time, be considered and decided, and he certainly was not responsible for the fact that it was held under advisement for three succeeding terms, and, when the court at last gave him his discharge, which it could only have lawfully done upon his compliance with the act, that discharge must certainly be as efficacious as though made on the day the matter was discharge under the act. The discharge, if presented to the court on the 7th of April, granted, is from confinement on account of any debts previously contracted. The form of the order of discharge is not printed in the state of the case, but it is stipulated that the order therefor was in customary form. The customary form must, in its nature, be one in conformity to the statute. Therefore the defendant has been discharged from confinement on account of any debts by him previously contracted, including the plaintiff's demand. It would be anomalous indeed if the defendant may be discharged from confinement on such demand, and consequently from his liability on the insolvent bond on the one hand, and his sureties, on the other hand, should be held for the payment of the debt, when their undertaking was to be answerable for it only in case he should not comply with the insolvent laws, and therefore not entitled to his discharge. This does not lay out of view the fact that the bond required that the debtor would appear in person at every subsequent court until he should be duly discharged, as a discharge by the common pleas necessarily includes a finding that the conduct of the debtor has been fair, upright, and just. These requirements are restricted to the debtor's conduct in the insolvency proceedings (Meliski v. Sloan, 47 N. J. Law, 82), and it is not perceived how this debtor could have been fair, upright, and just with reference to these proceedings, without having in all things complied with the requirements of the insolvency laws, including appearance in person in court, when required to do so. The form of the bond given in this case follows the statutory language contain-submitted to the court. ed in section 2 of the act, and concludes: "Then the above bond or obligation shall be void and of no effect; otherwise to remain in full force and virtue.' In St. Vincent's Church v. Borough of Madison, 86 N. J. Law, 567, 92 Atl. 348, it was held that, when an application for a writ of certiorari was made within the time preIn other words, if the insolvent debtor com- scribed by statute but allowed out of time, plied with the requirements of the insolvent the writ would not be invalid, because a juslaws, the bond was to be void and of no ef- tice of the Supreme Court has a constitutionfect; that is to say, there was to be no lia-al right to deliberately consider all applicability on the part of the insolvent debtor's tions made to him and take the same under sureties to pay his debt. advisement, and that, if the delay in enter of the court, the entry will be allowed nunc pro tunc as of the time when the party would otherwise have been entitled to it, as it is a rule of practice, as well as of common justice, that the action of the court should not be permitted to work an injury to a party. This doctrine is universal. It was applied in the court of chancery in Grant v. Grant, 84 N. J. Eq. 81, 92 Atl. 791. It extends to every court of general jurisdiction, of which the court of common pleas is one. So far as appears, there was no impedi-ing a judgment or order be caused by action ment in the way of the court's making an order for the discharge upon the day of the examination of the debtor, or at least within a short time thereafter, certainly within the term, for the examination took place on February 18th, and the term did not end until the second Tuesday of May following; that is, May 9, 1916. It was not until the third term thereafter that the assignee was appointed and the debtor discharged. This delay was not the fault of the debtor, but resulted from the action of the court. For this the debtor should not suffer. In Stokes v. Hardy, 71 N. J. Law, 549, 60 Atl. 403, at the hearing and examination of the debtor objection was made to the further prosecution of the matter on the ground that the defendant's petition had not been filed in The view that, when a debtor has been discharged by the common pleas under the insolvent debtors' act, that discharge by virtue of the statute shall operate to discharge the debtor's sureties on the bond, finds strong support in the case of Young v. Young, 45 N. J. Law, 197, 200, wherein Chief Justice |