THE TOWN OF MADISON, PLAINTIFF IN ERROR,

v.

JOHN H. NEWSOME, DEFENDANT IN ERROR

Cauteh, J.:

The court below should have granted a new trial. The town of Madison is a municipal corporation, and its authority to employ plaintiff as night watchman is derived from that portion of section 25, chapter 1688, approved February 4. 1809 (McClellan’s Digest, p. 252, sec. 84), which reads as follows: “That it shall be the duty of the mayor to see that the ordinances of the city or town council are faithfully executed; and he is hereby authorized, with the consent of the council to organize and appoint such police force as may be deemed necessary to insure peace, good order and observance of law, within the municipal limits, the compensation of said police to be fixed and regulated by the city or town council.”

If it be that this statute gives the mayor power to contract with a person to exercise the duties of night watchman, as contradistinguished from a mere power of appointment to such position, it is clear that he can exercise such power only with the consent of the town council. 1 Dillion’s Municipal Corporations, sec.

449. Public corporations may by their officers and properly authorized agents, make contracts the same as individuals and other corporations, in matters appertaining to the corporation, but those dealing with an agent of a municipal corporation are bound to ascertain the nature and extent of the authority of such agent in all cases where the authority is conferred by statute. 1 Dillion’s Municipal Corporations, sec.

447. It is obvious, therefore, that the contract for the year 1892, claimed by the plaintiff to have been made with the mayor in December, 1891, was not binding upon the town unless such contract was agreed to or ratified by the council, and this is true even though one member of the council was a party to the contract, because it requires the consent of a majority of its members to bind the town council. 1 Dillion’s Municipal Corporations, sec.

292. It was not claimed by plaintiff that more than one member of the council ever gave consent to the employment of plaintiff for a year, but it is claimed by him that the contract made with the mayor in 1891, was expressly ratified by the new mayor in 1892, and impliedly by the town council during the same year.

The evidence offered on the trial was confined exclusively to this special contract. The defendant’s plea denied the making of any such contract, and it devolved upon the plaintiff to establish a valid contract made by the officials designated in the statute as a basis for recovery. 1 Dillion’s Municipal Corporations, sec.

449. There was no evidence that the council had any knowledge that plaintiff had been employed for any definite length of time; neither was there any ordinance or resolution prescribing the term of service of night watchman, or authorizing the mayor to fix such term, nor was there any evidence that the mayor had ever contracted with a night watchman for any definite term of service, or that any person had ever been employed in that capacity for any definite period. There was never at any meeting of the town council any action taken in regard to plaintiff’s appointment other than to issue a warrant for his compensation each month. That the council knew the plaintiff was serving as night watchman is-not denied, but it was not shown that the council knew he was serving in any other manner than as his predecessors for several years had served, mz: during the pleasure of the town, or from month to month. The mayor denied ratifying the-contract in 1892, but even if he did ratify it, it did not become binding upon the town without-the assent or ratification of the council. In the absence of any evidence tending to show that the council knew that plaintiff had been employed for a year the jury were not justified in finding a ratification of any contract for that period from the fact that it paid plaintiff the monthly salary incident to the position of night watchman, because the ratification of a contract to be effective must be made with a knowledge of all material facts. 1 Dillon’s Municipal Corporations, sec.

463. The town council paid plaintiff for all-services performed by him, and this suit was instituted to recover the salary for the months subsequent to plaintiff’s discharge. This discharge was brought about by reason of an ordinance of the council passed March 1, 1892, requiring the night watchman to be a resident of the town, and under the circumstances there was nothing to prevent the council from ending plaintiff’s employment by the passage of this ordinance. Plaintiff declined to move into the town, and his position was filled by another appointment. Failing to prove a valid contract for any definite period, plaintiff was not entitled to recover in this case, and as the judgment must be reversed upon this ground it is unnecessary to consider whether, if a contract had been proven, it would have been within the statute of frauds.

The judgment of the Circuit Court is reversed and a. new trial granted.