to take all of the bonds then unsold, including those mentioned in the contract with the defendant, at a profit of $6,000 over the face value of the bonds. They telegraphed to the defendant their election to withdraw from the contract, and he answered, demanding "delivery of bonds as contracted." On the 4th of August he met a representative of the commissioners at the comptroller's office, and told him that he waived all defects, and that he wanted the bonds, or a share of the profits on them if they were sold to the comptroller.

The water commissioners, through their representative, insisted that the contract was conditional, and that under the circumstances they were released from it. The comptroller virtually refused to take the bonds unless a satisfactory arrangement was made with the defendant, so that he would get out of the way. After some negotiation a compromise was arranged, which was expressed in a contract signed by the defendant and by the president of the board. Said contract, dated August 4, 1893, recited that a dispute had "arisen concerning the fulfillment of a certain agreement relative to the sale by said board and the delivery of certain water bonds to said Fish," and "for the purpose of settling said dispute the said board" agreed "to pay, and the said Fish to accept, the sum of $1,750, in full settlement, payment, and satisfaction and discharge of all claims and liabilities of the said water commissioners to the said W. W. Fish for and on account of the failure of said board to deliver said bonds to said Fish under the terms stated in said agreement; said sum to be paid within five days." The comptroller thereupon accepted the bonds, and paid a premium on them at the rate previously agreed upon. On the same day the president, in behalf of the committee in charge, reported to the full board the facts concerning the compromise and settlement with the defendant. The report was accepted, but no other action was taken, except that the thanks of the board were extended to the committee. On August 10th the water commissioners paid the defendant the sum of $1,750, as required by the compromise agreement. In June, 1894, the plaintiff commenced this action to recover from the defendant said sum, with interest from the date of payment, upon the theory that it was made without lawful authority. Upon the trial before the court without a jury, the foregoing facts appeared, with others, without dispute; and, no evidence having been given by the defendant, the presiding justice dismissed the complaint on the ground that the plaintiff had failed to establish a cause of action. Upon appeal to the general term the judgment was reversed, and the defendant now comes here, having given the usual stipulation for judgment absolute.

The legislature enacted that the bonds should not be "disposed of by such commissioners at less than the par value thereof."

Laws 1875, c. 181, § 8. The first question presented for decision is, what is the meaning of the words "par value," as thus used in the statute? "Par" means equal, and "par value" means a value equal to the face of the bonds. A sale of bonds at par is a sale at the rate of a dollar in money for a dollar in bonds. This is the accepted meaning of the term in the mercantile world, which the legislature is presumed to have adopted in enacting the statute. The question is not open to discussion in this state, for it was settled more than 50 years ago by the noted case of State v. Delafield, 8 Paige, 527, 26 Wend. 192, 2 Hill, 159. In that case it was held that where the legislature of a state authorized its officers to borrow moneys for the use of the state, and to sell its bonds for that purpose, but not for less than their par value, a sale of bonds which were to draw interest from the time of sale, but which were to be paid for in future installments only, and without interest. was a sale of such bonds for less than their par value, and that they were not binding upon the state, because its agents had exceeded their authority. When the matter was before the chancellor, he said: "If the officers could issue bonds which would draw interest immediately, and still be allowed to give the purchaser of such bonds the use of the money loaned for ten months, without interest, they could with the same propriety, so far as the statutory prohibition was concerned, have sold the bonds upon a contract that they should be delivered and draw interest immediately, and that the purchaser might advance the nominal amount of the bonds in installments of from one to five years, as the same might be wanted by the complainant to carry on her public works. very idea of a sale of a bond or draft, or other security for the payment of money, at par, is that it is to be sold dollar for dollar of the amount due and payable thereon. Such is the popular or generally received meaning of the terms 'par' or 'par value,' and this was unquestionably the sense in which these terms were used by the legislature of Illinois, in the statute under which the officers of the state were authorized to issue these bonds." When the case reached the court of errors, Judge Bronson said that "if 'par value' does not mean, in this case, a dollar in money for every dollar of security, the wit of man cannot tell us what it does mean." Senator Verplanck, referring to the same subject, said: "If the payment be now made to the state in New York funds, the par value would, in the common language of the stock market, as well as the natural interpretation of the phrase, independent of usage, be the amount due on the face of the certificate. But the actual sale is made on terms which, on the $300,000 sale, gave the appellant an advantage of one hundred and three days' interest; and on the $283,000 sale, of above ten months. I cannot, upon any understanding of the words, consider this

The

a sale at par value, any more than if there had been an undisguised discount at the same rate." In the case now before us the face value of the bonds contracted to be sold by the water board to the defendant included accrued interest, and amounted to $50,444.44, whereas the contract price was but $50,000. The executory contract, therefore, provided for a sale of the bonds "at less than the par value thereof," in violation of the statute, and was absolutely void, because it was expressly prohibited by law. Neither party was bound thereby, and it could not be the subject of a valid claim by either against the other. State v. Delafield, supra; Hodges v. City of Buffalo, 2 Denio, 110; Ford v. Mayor, etc., 63 N. Y. 640; Parr v. President, etc., 72 N. Y. 463. It was not void simply as ultra vires, but as a forbidden act. The defendant was obliged, at his peril, to inquire into the authority of the commissioners to make the contract, and was bound to notice the limitation of their powers. Supervisors of Rensselaer County v. Bates, 17 N. Y. 242, 246; McDonald v. Mayor, etc., 68 N. Y. 23; Smith v. City of Newburgh, 77 N. Y. 130; Dill. Mun. Corp. § 447.

The second question presented is whether the water board had power to compromise a claim based on said void contract, and to pay the amount agreed upon from the proceeds of the bonds. If the question arose between individuals, with no limitation upon their power to make contracts, there can be no doubt that the substitution of the second agreement in satisfaction of the first, and the voluntary execution of the former, would have been valid as an accord and satisfaction. McCreery v. Day, 119 N. Y. 1, 23 N. E. 198. The water commissioners, however, had no power to make a contract or to pay money unless it was expressly or impliedly authorized by statute. They were not a corporation, nor were they acting as public officers, or as trustees of the plaintiff, but as water commissioners, or as agents with limited powers, and the principle of strict construction is to be applied. Fleming v. Village of Suspension Bridge, 92 N. Y. 368, 372. An examination of the statutes already cited shows that the express powers of the water commissioners were confined to acquiring lands and constructing waterworks for the village, but in order to do this they also had power to borrow money on the credit of the village, and to issue bonds therefor, and to use the money so borrowed for the purpose of supplying the village with water, but not for any other purpose. They clearly had no express power to make a compromise agreement with the defendant, or to pay the money of the plaintiff, borrowed to construct a water plant, in satisfaction thereof. What were their implied powers? Having made a contract that was expressly prohibited by law, had they implied power to get rid of that contract by a compromise? Implied power can be inferred only from the general

scope of the actual power, and the necessity of doing something essential to the efficient exercise thereof. The actual power was to borrow money by issuing and selling bonds at not less than par. The express power to issue bonds involved the implied power to pay for engraving, printing, and the like. The express power to sell bonds doubtless carried with it the implied power to pay counsel for an opinion as to the validity of the bonds, as was done in this case, and possibly to pay a commission to brokers for selling the bonds. These expenses were incidental to the duty imposed, and fairly came within the scope of the main power. But from what is the power to make the compromise in question to be implied? The contract was void, and could not be enforced. There was no implied power to get rid of it; for, being void, it could not stand alone in court, and any effort to enforce it would meet with defeat. "No cause of action can arise from an undertaking prohibited by statute, whether the contract is malum in se or malum prohibitum." Peck v. Burr, 10 N. Y. 294, 299. Still, as it is said, it prevented an advantageous sale to the comptroller. The bonds were marketable. The attorney general had pronounced them valid. The comptroller was willing to buy them at a premium, and the defendant was eager to take them. The hesitation of the comptroller was not owing to lack of confidence in the bonds, but simply to a reluctance to interfere with the defendant's bargain. The water commissioners were not forced to come to terms with the defendant in order to sell their bonds. No implied power, therefore, sprang from necessity, for no necessity existed. Moreover, a corporation has no power to compromise a contract which it had no power to make, unless it is to the extent of eliminating the illegal or unauthorized elements. Dill. Mun. Corp. §§ 448, 477. The contract to sell the bonds below par was not only unauthorized, but prohibited, and therefore constituted no consideration for a new contract. It was made without power, in defiance of a statutory command, and it did not even have the excuse of a stress of circumstances. It was not merely voidable, but void ab initio. Even if the village itself, acting through its trustees, who are public officers, would have had power to compromise any suit brought by the defendant upon said contract, still the water commissioners, who are mere agents, had no such power. They could neither compromise, nor agree to compromise, a claim against the village founded on their own illegal act.

The doctrine of voluntary payment cannot be invoked by the defendant to enable him to retain the money of the plaintiff that was illegally paid to him. That doctrine applies to individuals who have power to do as they wish with their own, but it does not apply to an agent of a municipal corporation, whe pays out its money, without power, to one

Hun, 454; In People "The pay

who accepts it with knowledge. The statute forbade the payment from the funds of the water board, and action forbidden by statute is void. A void act is no act, and a void payment is no payment. Such a payment is not voluntarily made by the corporation, but by its agent, in excess of his authority and in defiance of its rights. It is not the act of the corporation itself, but of one, without authority, who assumed to act for it. People v. Fields, 58 N. Y. 491, 505; Board of Sup'rs v. Ellis, 59 N. Y. 620; Lyddy v. Long Island City, 104 N. Y. 218, 10 N. E. 155; People v. Gleason, 121 N. Y. 631, 25 N. E. 4; Board of Sup'rs v. Van Clief, 1 Surdam v. Fuller, 31 Hun, 500. v. Fields, supra, the court said: ment was made and received without any lawful power in the comptroller to make it. The defendant is chargeable with knowledge of this. It was a payment by an agent, who had no authority as such to make it. It was then no payment by the principal in mistake of law or ignorance of fact. The principal, in legal view, had no part in the payment, and it was made against its will. It was equivalent to an appropriation by the appellant of the moneys to his own use, with the acquiescence and help of the officer of the city, who was authorized to pay them out no otherwise than in accordance with law. He having made the payment unlawfully, it was an act not within the scope of his agency, and does not bind his principal. U. S. v. Bartlett, Dav. 9, Fed. Cas. No. 14,532; Stevenson v. Mortimer, Cowp. 805; Taylor v. Plumer, 3 Maule & S. 562. There is for these reasons a right of action somewhere against the appellant, to recover the whole or a part of these moneys." In Board of Sup'rs v. Ellis, 59 N. Y. 620, it was held that the payment of an account not legally chargeable to the county, although duly audited by the board of supervisors, is not a voluntary payment by the county, but an unauthorized act of its agents, and that an action would lie at the suit of the county to recover back the moneys paid. So in the case before us the payment was in no sense voluntary, because it was not made by the village, but by the unauthorized agents of the village. The plaintiff received no benefit from the act, and hence there was no occasion for restitution, and no ratification by retaining the benefits, as in many of the cases cited by the defendant. The parties were not in pari delicto, because the plaintiff did not really make the payment, but its funds were used for that purpose without its authority. It is a matter of grave public concern to protect municipal corporations from the unauthorized and illegal acts of their agents in wasting the funds of the taxpayers. It is only with the utmost difficulty that municipal officers and agents can be kept within the bounds of their authority now, but once let it go forth as the settled law of the state that an illegal contract can become the basis of a

lawful compromise entered into between the contractor and an agent guilty of the illegal action, and a new door will be opened to municipal spoliation. If a paving contract is let to the highest instead of the lowest bidder, in violation of a statute requiring competition, a compromise with the contractor, followed by payment of a gross sum equal to all the profits that he could have made on the contract if executed, should not enable him to keep the spoils and defy the public. Sound public policy will not permit the courts to countenance this dangerous method of evading a statute, for it will always be done under the claim of good faith, and the fraud beneath will be hard to discover. For these reasons I think the order appealed from should be affirmed, and that judgment absolute should be rendered against the defendant on his stipulation, with costs. All concur. Ordered accordingly.

ANDERSON v. BOYER et al.

(Court of Appeals of New York. June 7, 1898.)

TRIAL-UNCONTROVERTED EVIDENCE-SUBMISSION

TO JURY.

In an action to recover damages for injuries caused by the negligence of the captain of a lighter for which it was claimed that defendant was liable, the defendant testified that one S. had agreed with him to charter the lighter, with her crew of two men, for $15 per day, S. doing the towing and all work necessary for the business in hand except defendant's furnishing the boat. A receipted bill from defendant to S. was put in evidence by the plaintiff, eentaining charges for the charter of the lighter at $15 per day, and a disinterested witness testified that he heard the conversation between defendant and S. There was no contradiction of this testimony, though the last-mentioned witness was somewhat shaken on cross-examination as to the identity of the person whose conversation with defendant he heard. Held, that the defendant's testimony was so far corroborated that the court was bound to accept it as true, and it was error to submit to the jury the question whether the contract between defendant and S. was of the character described, or whether the defendant had parted with all control of the boat and her crew, notwithstanding it was shown that defendant had required the captain of the lighter to collect his bill from S. before unloading goods, and had sent his superintendent to look after the lighter. Gray, J., dissenting.

Appeal from supreme court, appellate division, First department.

Action by Christian Anderson against Charles H. Boyer and others. From a judgment of the appellate term (43 N. Y. Supp. 87) affirming a judgment in favor of the plaintiff, defendants appeal. Reversed.

J. Hampden Dougherty, for appellants. J. Edward Swanstrom, for respondent.

PARKER, C. J. The plaintiff was injured by the falling of a heavy tank, which was being unloaded from a lighter at Newark, N. J. As the record comes to us, it must be

deemed established that the accident was due to the negligence of the captain of the lighter, and the question demanding decision by this court is: Are these defendants responsible for the conduct of the captain? The defendants were the owners of the lighter, but they claim that at the time of the accident, and for some time prior thereto, she was in the possession of one Schoenewolf, under a charter which gave to him the absolute control of the lighter, together with its captain and his mate. There is, of course, no question but that if the defendants, by their agreement with Schoenewolf, had in fact given him possession and absolute control of the boat and its men until he should have accomplished the work for which he engaged her, then the captain, in what he did, was acting as the servant of Schoenewolf, and not of the defendants. This brings us to an examination of the evidence relating to the nature of the contract. One of the defendants, Boyer, testified that Schoenewolf called at his office some time in February, 1893, and "asked me if I would transport some goods for him from somewhere up the East river to Newark, and what it would cost. I inquired from him the nature of the goods, and he said that he was moving a brewery, or part of a brewery, from there to Newark. He could not tell me the exact nature of the goods, nor could I give him any price then. Then he agreed with me to charter- (Objected to as a conclusion.) The Court: What was said? A. Then I proposed to him that I would charter him a boat by the day, furnished with two men, and he paying all expenses for taking charge of the boat. He wanted to know what that would cost, and I told him fifteen dollars per day. He wanted to know what the towing would be, and I told him I could not tell that, to find that out for himself; or I told him what we charged, and he agreed to it. On the 13th of February- Q. One moment; what did he say, 'Yes' or 'No,' to the proposition? A. He said he agreed to it, and then he told me he would send men to where this freight was coming from to take charge of the lighter, and also to take charge of her when the stuff that she had on was delivered. I asked him, but he could not exactly tell me, what the class of goods were. He said they were brewery goods, and some heavy weights. * My proposition, which he agreed to, was to furnish him the boat and two men at fifteen dollars per day, and he was to do his own towing. He was to do all the work necessary to carry his goods, outside of my furnishing the boat,-charter the boat from me." The barge was taken by Schoenewolf on the 13th day of February, and was returned to defendants in the latter part of March. This evidence is wholly undisputed, and it shows that the defendants, owning this lighter, and employing the men in charge of her by the month, were applied 50 N.E.-62

to by Schoenewolf to transport certain articles from New York to Newark, which they refused to do, but instead offered to charter the boat to Schoenewolf at $15 per day, which was to include the services of the two men in charge of her. This proposition was accepted, and the contract was subsequently carried out by the parties. Notwithstanding this uncontradicted testimony, the trial court submitted to the jury the question whether the contract between the parties was of the character described in the testimony of the defendant Boyer. The majority of the appellate division sustains this action of the trial court. The method of reasoning by which this result is reached is, in substance, that, as presumptively the boat, captain, and mate continued to be under the control of the defendants, the burden was upon them to establish the existence of the contract demising the vessel to Schoenewolf, and that such contract was still in force at the time of the injury to the plaintiff. The next step taken consists of the assertion that the only evidence to be found in the case as to the terms of the contract was given by the defendant Boyer, who was an interested party, and therefore the weight to be given to his testimony was a question for the jury, and hence the court did not err în submitting it to them. Without conceding that the testimony of a party is never to be taken as true by the court, but must always be presented to a jury to decide as to its truth or falsity, although it be uncontradicted and without facts or circumstances present tending to throw doubt upon it, we reach the conclusion that the testimony of the defendant was so far corroborated that the court was bound to accept it as true. Before referring to the corroborating testimony, mention should be made of the fact that there is not present in this record any fact or circumstance throwing discredit on the testimony of Boyer as to the nature of the contract with Schoenewolf.

The testimony of the defendant Boyer seems to us to have substantial corroboration. In the first place, the plaintiff introduced in evidence the receipted bill which the defendants had presented to Schoenewolf. It reads as follows:

New York, March 15th, 1893. Mr. P. Schoenewolf to L. Boyer's Sons, Dr. Lighterage and Transportation, Steam Lighters & Barges. 90 Wall Street. (Chas. H. Boyer. Frank W. Boyer.)

It would seem from this bill that a previous bill had been presented covering the portion of the month of February during which Schoenewolf had had possession of the lighter. After stating the balance due for the month of February, the next item is: "To charter barge James F. from March 1st to March 15th, at $15 per day, $225.00." There is another item in the bill: "To charter barge James F. from March 16th to Mar. 19th, 1893, at $15 per day, $48.00." We find it distinctly stated, therefore, in the bill which Schoenewolf accepted and paid, that defendants did charter to him the barge for the sum of $15 per day. It constitutes a brief summary of the contract itself, as stated by the defendants. The receipt is certainly not subject to criticism by the plaintiff, for he presented it to the court, having presumably obtained it from Schoenewolf, into whose possession it went after payment to the defendants of the sum therein stated to be due. If further corroboration than this of the uncontradicted testimony of a party be required in order to take away from a jury the power to say there was no such contract, but that some other contract, of which the testimony contains no hint whatever, was really made, then, surely, parties to actions have failed to secure all the benefits it has been supposed accrued to them under the statute authorizing them to testify in their own behalf. But there is still further corroboration. John Lang, the defendant's superintendent, testified that he was present at the making of the contract between the Boyers and Schoenewolf. To a question he answered: "I think I saw him when he came into the office and made the contract with Frank W. Boyer. I was present when the contract was made. I have heard Mr. Boyer's testimony about it. I heard Mr. Boyer make the proposition to Schoenewolf to take the boat and the two men by the day. Mr. Schoenewolf said he accepted the proposition, and I think he said, 'I will let you know to-morrow morning when I want the boat, and where.'" This is certainly most substantial corroboration. The witness asserts his presence at the time the contract was made about which Boyer had testified in the presence of the witness, and that he heard Boyer make the proposition to Schoenewolf to take the boat and the two men by the day, and that Schoenewolf accepted it.

But the respondent's counsel insists that on his cross-examination the witness' testimony was substantially broken down. The portion of the cross-examination referred to reads as follows: "I had never seen Mr. Schoenewolf before that day. I am able to say that it was Mr. Schoenewolf that came into the office, because he introduced himself. I heard him do that. That is all I know about it. [Referring, of course, to his reason for knowing that it was Schoenewolf, not to his knowledge of the contract.] I had not seen him before or since. I would not

know him now if I saw him. He was a stranger to me. All I mean to tell this jury is that some man, who was a stranger to me, came in and spoke about hiring a boat. and then Mr. Boyer told him what the terms were; and then the man said, 'I will let you know to-morrow morning,'-something of that description." Whatever there was of hesitation or doubt in the testimony of this witness clearly referred to the question as to how he knew that the person who made the contract with Boyer was Schoenewolf. But we need not stop to analyze the testimony of the witness to see whether or not the value of the direct testimony was cut down by the cross-examination. It is quite sufficient for the present examination that it appears that the testimony of this witness and the receipt, taken together, corroborated the testimony of the defendant Boyer in every material respect touching the nature of the contract between the defendant and Schoenewolf. And, such being the case, the court was not at liberty, in the absence of contradictory evidence, to submit it to the jury to find whether there was not an entirely different contract, under which the defendants retained the control of the boat, the captain, and the mate.

Counsel for the respondent insists, however, that, assuming the contract to be as stated in the testimony of Boyer, still it was for the jury to say, in view of all the testimony. whether the owner parted with all possession. authority, and control over the vessel and its crew. The foundation for this claim is an alleged ambiguity in the contract, as testified to by Boyer; and therefore it is urged that the subsequent conduct of the parties while the contract was in process of execution could be invoked for the purpose of ascertaining what the parties really intended. The difficulty in considering this proposition is that the alleged ambiguity is not pointed out, and we have been unable to find it. But, assuming its existence, we note that respondent's next position is that certain action was taken by defendants, during the time this boat was in possession of Schoenewolf, which indicated that the defendants had not devested themselves of all control over the captain. The impression received from the argument is that the Boyers were asserting the right of control generally over the captain and the lighter, but an examination of the evidence discloses that, after Schoenewolf took possession of the boat, the defendants' superintendent went to the dock where the boat was to load, to ascertain if she was safely there, and if everything was all right with her. There is no hint of an attempt on the part of the superintendent to control the use of the boat or the action of the captain or the mate. It seems not at all remarkable that people engaged in the business of chartering lighters and other boats should, from time to time. have inquiry made as to their condition. Apparently, the boat was unexpectedly laid up