Appeal from the Circuit Court for Allegany County; Cobey, J.
Brune, C. J., and Henderson, Prescott, Marbury and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.
The plaintiff, White, appeals from a judgment n. o. v. in favor of the defendant, the County Commissioners of Washington County, a municipal corporation (sometimes referred to below as the "County"), entered in a suit in contract for the rental of a power shovel. The suit (filed in Washington County but, on suggestion of the plaintiff, removed to Allegany County for trial) was brought on the common counts and a special count. At the conclusion of the testimony the common counts were abandoned, and the case was accordingly submitted to the jury under the special count alone.
The special count alleged that the parties on or about March 12, 1958, entered into a contract for the rental to the defendant of a (power) shovel owned by the plaintiff at a monthly rental of $2,268.00, and that the defendant agreed to pay the cost of moving the shovel to the defendant's location, which cost was stated as $830.00. This count further alleged that nothing had been paid by the defendant and that the equipment had not been returned to the plaintiff, and claimed as due the amount of the rental for 17 1/2 months (aggregating $39,690.00),
plus the $830 moving charge. There were, we think, some differences between the contract as alleged and the evidence, but we find no need to go into that matter.
The court's instructions presented two issues to the jury -- first, whether there was a definite agreement between the parties, and second, whether the County Road Superintendent, with whom the contract was claimed to have been negotiated, had authority to bind the County. The jury returned a verdict for the plaintiff for $6,000. The court's instructions, to which no exceptions were taken, limited recovery to an amount equivalent to a rental of $2,268 per month for approximately 2 1/2 months, but in no event to exceed the fair value of the shovel. The time limitation was apparently based on evidence that as a result of a demonstration of the shovel in May or June, following its delivery in March, the County determined that it did not want the shovel and that the plaintiff was so informed, and also that the shovel was never used or operated by the County after the day of its unsatisfactory demonstration.
In granting the defendant's motion for judgment n. o. v., Judge Cobey held that the County Road Superintendent did not have authority to bind the County by the alleged contract and that the plaintiff was, therefore, not entitled to recover. We think that this decision was correct, and we find it unnecessary to consider the other point urged by the appellee to the effect that no definite contract was ever agreed upon.
Ultra vires was not pleaded and does not appear to be an issue in the case. The defendant has not claimed that it was beyond the power of the County to enter into the alleged contract upon which this suit is based. The controversy is with regard to the power of its agent, the Road Superintendent, to bind the County by the alleged contract. (See Pennsylvania R. Co. v. Minis, 120 Md. 461, 87 A. 1062; Machen, Modern Law of Corporations, § 1012, as to the meaning of ultra vires.)
The evidence makes it clear that any contract involving the rental of the shovel in this case was not for emergency or merely temporary use. On the contrary, the Road Superintendent was negotiating primarily for the purpose of a power
shovel for permanent use. He wanted to operate it at a shale pit to dig and load shale to be used for road maintenance and construction work in order to obviate the frequent need for, and substantial expense of, bringing in other heavy equipment employed elsewhere to do this digging and loading, and he negotiated for an agreement under which any rental paid for the shovel would be applied against the purchase price. The plaintiff was well aware of all of this, specifically including the intended permanent or long-term use of the shovel.
Unfortunately for the plaintiff, neither a hire-purchaser arrangement nor any other agreement for the rental of this equipment was ever approved by the Board of County Commissioners acting as a Board. There is some evidence to the effect that one of the Commissioners (who died before the trial) had informally approved a hire-purchase arrangement. There was, however, no approval, formal or informal, by the Board acting as such of any agreement for the rental and purchase, or only for the rental, of this shovel. The approval of only ...