Bender Press, Inc. v. County of Orange

Appeal by the defendant from a judgment of the Supreme Court, Orange county, in an action on a contract for the publication of a notice of tax sale, the publication of which, plaintiff alleges, was not completed for the reason that the defendant refused to accept performance and canceled the contract. Judgment in favor of the plaintiff modified by reducing the amount of the recovery from $5,372.08 to $1,519.19, with interest from April 30, 1935, together with costs and disbursements in the trial court, and, as thus modified, unanimously affirmed, without costs. Findings seventh to thirteenth, both inclusive, reversed and conclusions second, fifth and sixth disapproved. New findings and conclusions will be made. In our opinion, recovery on the theory of breach of contract is not warranted by the proof. Plaintiff is entitled to recover on a quantum meruit basis only. Where a public officer is given, by statute, the power to order work to be performed or goods to be delivered, irrespective of what contract he may make, or attempt to make, the county, upon audit by its board, may, under such agreement by such officer, be held liable only for the reasonable value of that which the county received pursuant to the order. The rule is otherwise where, by *676express direction of the board, fixing and approving the details thereof, a contract is entered into by a county. Here there was no audit. The board of supervisors refused to audit and rejected the contract and claim under it. There was but one publication of the notice. Carswell, Davis, Adel and Close, JJ., concur; Lazansky, P. J., concurs in result. Settle order on notice.