made, of good material, and capable of making eighteen hundred revolutions per minute; and that plaintiff relied upon such representations and warranty in making the purchase. This action was brought for damages, on the theory that the injury to plaintiff was the direct result of a defect in the wheel, and that defendants were liable as for a breach of the alleged warranty.

The only question we deem necessary to consider is whether the evidence establishes the allegations of the complaint that defendants warranted the wheel at the time of the sale. It was not manufactured by defendants, who were wholesale and retail dealers in heavy hardware, and kept wheels of the kind in stock for sale to the trade; but was manufactured by the Northampton Emery Wheel Company, of Massachusetts, from which company defendants purchased it, with others, in the usual course of trade. A printed card was placed by the manufacturers upon the face of the wheel, which contained the words "Northampton Emery Wheel Co.," the word "Speed," and opposite thereto the figures "1,800," indicating, as claimed by plaintiff, that the wheel was capable of being safely operated at the rate of eighteen hundred revolutions per minute. There were other words upon the card, together with the word "Warranted." This card was upon the wheel at the time it was purchased by plaintiff, and the contention of plaintiff is that the same constituted and amounted to a warranty on the part of defendants in respect to its quality and speed capacity; that, although it may have been placed upon the wheel by the manufacturers, 63 defendants adopted it as their own by making the sale without removing it therefrom.

Conceding that the printed matter upon the face of the wheel was sufficient to constitute a warranty, we are unable to concur in the contention that it was the warranty of defendants. A warranty consists in representations and statements of and concerning the condition and quality of personal property, the subject of sale, made by the person making the sale to induce and bring it about. So far as the evidence in the case at bar shows, nothing whatever was said between the plaintiff and defendants concerning the condition or quality of this wheel, whether it was capable of making eighteen hundred revolutions per minute or any other number of revolutions, or as to whether it was fit and suitable for any particular purpose. Attention was not called by either party to the alleged printed warranty, and for aught that appears from the record, the

same was not noticed by either at the time of the sale. Clearly, under such circumstances, the placard cannot be held to be the warranty of defendants, and to hold that they adopted the representations purporting to be thus made would be going far beyond any case to which our attention has been called Whether the manufacturers would be liable to plaintiff upon this warranty, either upon the ground of neglect in the manufacture of the wheel or for a breach of warranty, is wholly irrelevant to the question. If it be granted that the manufacturers would not be liable, it by no means follows that defendants are. We are clear that the mere sale of the wheel by defendants with the printed matter pasted thereon, without other act or ceremony, did not amount to an express warranty on their part. The allegations of the complaint are not, therefore, sustained by the evidence, and the court correctly dismissed the action. Neither can plaintiff recover upon the theory of an implied warranty. It may be, and doubtless is, true that there is an implied warranty in all cases where an article is manufactured and sold for a specific purpose that such article is fit and suitable for the purposes intended for it. But that rule can have no application to the case at bar, for plaintiff relies in his complaint, not 4 upon an implied, but upon an express warranty; and, besides, defendants were not the manufacturers of the wheel.

The order appealed from is affirmed.

Implied Warranties of soundness in sales are discussed in the monographic note to Emerson v. Bringham, 6 Am. Dec. 113-119. Ordinarily, no warranty of soundness is implied: Court v. Snyder, 2 Ind. App. 440, 50 Am. St. Rep. 247, 23 N. E. 718. Compare Bulwinkle v. Cramer, 27 S. C. 376, 13 Am. St. Rep. 645, 3 S. E. 776.

STONE V. BEVANS.

[88 Minn. 127, 92 N. W. 520.]

MUNICIPAL CORPORATIONS-Void Contract.-A contract entered into by the common council of a municipality concerning a municipal matter for the benefit of one of the members of such council is void. (p. 508.)

MUNICIPAL CORPORATIONS Contract of Officer with Recovery of Payments.-If a void contract is entered into between a municipal council and one of its members under which the latter has received money, it may be recovered for the municipality in a suit by a taxpayer thereof. (p. 508.)

Cliff & Purcell, for the appellant.

R. A. Stone, pro se.

127 LOVELY, J. Plaintiff brings this action, as a taxpayer of the village of Morris, for himself and others similarly interested, to recover money wrongfully voted by the village council to one of its members. The cause was tried to the court, who found that the allegations of the complaint were true; also, that the defensive matters set forth in the answer were not established; and as a conclusion of law held that judgment should be entered against defendant Bevans for the amount claimed by plaintiff in behalf of the village. Upon a settled case containing the evidence the defendants moved for a new trial, which was denied. From this order they appeal. It is provided in the organic act of the village of Morris that its governing body shall be a president and four councilors who 128 "shall constitute the common council of the village,

. . a majority of whom shall constitute a quorum for the transaction of business": Spec. Laws 1881, c. 30, sec. 4.

Such council is clothed with the usual powers given to the legislative bodies of municipalities in this state, and could incur an indebtedness for a water plant and extension.

Defendant Bevans was president of the council. The other four defendants were the members thereof. In 1891 an extension to the waterworks system of the village was contracted for by the council. New mains were to be laid and bonds issued to pay therefor. The president manifested considerable interest in the matter, and aided in superintending the work. He also visited Dubuque, Iowa, with reference to a suit brought by parties in that city against the village, growing out of matters

connected with the waterworks. In consideration of such assistance by the president of the council, and in order to secure his active services until the completion of the enterprise, the council, at a meeting held August 30, 1891, adopted a resolution appropriating to him the sum of fifty dollars per month from July 1st, previous to January 1st following. At such meeting Bevans was not present, and did not participate in the resolution, but in pursuance thereof orders were thereafter issued for one hundred and fifty dollars, which he collected.

According to one view of the complaint, it would seem as if the theory of the plaintiff was that this appropriation of money for services of the president of the council was regarded as an attempt to increase his salary, which would clearly be in violation of a specific limitation of the village charter, which forbids any member of the council from receiving more than three dollars per month during any one year for his services: Spec. Laws 1881, c. 30.

In defendant's answer it was alleged, however, that the services of Bevans were rendered to the village in an independent employment not germane to his official duties, and that all the services for which he was thus paid were outside the scope thereof. This is really the statement of a conclusion of law, for it is conceded in the record that Bevans was a member of the council; that the compensation for the services rendered were not accepted as a 120 part of his salary, but dependent upon the resolution of August 30th; and, having received it, his duty to pay back the money is dependent upon his official relation to the municipality.

If the president of the council had the right, under the conceded facts, to enter into a contract with the village, which could only be negotiated through the council of which he was a member, for services which he was himself to render, we would be required to go further, and consider the orders of the trial court in the exclusion of testimony tending to show the meritorious character of the services actually rendered to the municipality; but we are very clear that the resolution was illegal, and could confer no rights upon a member of the council, based upon an agreement with that body for compensation. The relation of members of the council to the village was one involving trust and confidence, and such members could not make contracts with themselves relating to public affairs, or derive any emoluments therefrom not specifically authorized by law.

It is a fundamental principle that the same person cannot act for himself, and at the same time, with respect to the same matter, as the agent of another, whose interest might be in conflict with his. The two relations impose different obligations, and their union would at once involve a conflict between interest and duty: Wardell v. Union Pac. R. R. Co., 103 U. S. 651. This rule is applicable to the officers of public as well as private corporations: Dillon on Municipal Corporations, secs. 444, 915.

In General Statutes of 1894, section 6666, it is provided that "a public officer, who is authorized to . . . make any contract in his official capacity, or to take part in making any such contract, who voluntarily becomes interested individually in such contract ... directly or indirectly, is guilty of a misdemeanor."

The purpose of this statute is plain, and the contract, being within its express prohibition, was void, and cannot be made the basis of a valid contract relation: Ingersoll v. Randall, 14 Minn. 304 (400); Bisbee v. McAllen, 39 Minn. 143, 39 N. W. 299.

It is therefore immaterial, in view of the admitted facts, that the trial court refused to receive evidence tending to show that 130 the services rendered by the president of the council were meritorious and beneficial, since he had no right to negotiate for or enter into the same with the official body of which he was a member at the time, and it is not now an open question in this state that money thus voted by a municipal body to one of its members may be recovered for the municipality at the suit of a taxpayer: Bailey v. Strachan, 77 Minn. 526, 80 N. W. 694.

Order affirmed.

Contracts between a city council or a board of supervisors and one of its members are unenforceable: Berka v. Woodward, 125 Cal. 119, 73 Am. St. Rep. 31, 57 Pac. 77; Snipes v. Winston, 126 N. C. 574, 78 Am. St. Rep. 666, 35 S. E. 610; and money paid thereunder to the officer can be recovered back: Land etc. Co. v. McIntyre, 100 Wis. 245, 69 Am. St. Rep. 915, 75 N. W. 964; monographic note to New Orleans etc. Co. v. Louisiana etc. Co., 94 Am. St. Rep. 424, 425.