McGovern v. City of Boston

Decision Date27 February 1918
Citation229 Mass. 394
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesPATRICK McGOVERN & another v. CITY OF BOSTON.

January 7 1918.

Present: RUGG, C.

J., DE COURCY CROSBY, & PIERCE, JJ.

Contract Incorporation of statute, Construction, Implied in law Rescission. Boston Transit Commission. Public Officer. Municipal Corporations, officers and agents. Equity Jurisdiction, For rescission of contract, Mistake. Boston.

A contractor, in making with the city of Boston through the Boston transit commission a contract for the construction of a section of the

Dorchester tunnel, was chargeable with knowledge of the requirements of

St. 1911, c.

741, Section 17, as to such a contract. In making such a contract in the name of the city, the members of the

Boston transit commission act as public servants and not as servants or agents of the city.

If, through negligence of the members of the Boston transit commission, misstatements of fact were made as the basis upon which bids for the work were sought and a contractor signed a contract relying upon such misstatements, to his damage, the city is not responsible for such negligence of the public officers, and it is not a ground for rescission of the contract.

If, to procure as low a bid as possible from the contractor, the members of the commission wilfully misled and deceived him as to material facts and concealed the true state of affairs from him, so that he was led to make a contract for a sum too small, the city is not responsible for such misconduct on the part of the members of the commission, who are public officers, and such misconduct is no ground for a rescission of the contract.

By reason of the requirement of St. 1911, c. 741, Section 17, that contracts for work in the construction of certain tunnels and railways in Boston, among them the Dorchester tunnel, which involve $2,000 or more in amount, shall be in writing and signed by a majority of the

Boston transit commission, a contractor cannot recover from the city upon a quantum meruit for a sum in excess of $2,000 for work done and labor and materials furnished in the construction of a section of the Dorchester tunnel, where he contends that the contract in writing for such work, entered into between him and the city through the Boston transit commission, was invalid.

Although St. 1911, c. 741, Section 17, does not expressly prohibit recovery from the city upon an implied contract under the circumstances above described, it is the only reasonable inference from its provision that all contracts coming within its terms must be in writing.

A bill in equity by a contractor against the city of Boston which alleges that a contract made by him with the city through the Boston transit commission for the construction of a section of the Dorchester tunnel was procured through negligence of the commission in not accurately ascertaining and stating to him the character of the work to be done and through wilful deception and fraud of the commission in misstating the facts, and which seeks a rescission of the contract, cannot be maintained as a bill for a cancellation of the contract by reason of a mutual mistake.

Whether under the circumstances a bill in equity to cancel the contract because of a mutual mistake of the contractor and the commission would lie, was not considered.

BILL IN EQUITY, filed in the Supreme Judicial Court on February 28, 1917, for a rescission of a contract entered into by the plaintiffs and the defendant, acting by the Boston transit commission, for the construction of a section of the Dorchester tunnel, so called, after the work had been completed by the plaintiffs, and for a recovery upon a quantum meruit for work done and labor and materials furnished.

The defendant demurred to the bill. The demurrer was heard and was sustained by Carroll, J., who reported the case to the full court for determination, with a stipulation that, if the full court should overrule the demurrer, the defendant was to answer over and the cause was to be heard upon the merits, and, if the full court should sustain the demurrer, a decree was to be entered dismissing the bill unless the court should thereafter allow an amendment to the bill.

J. F. Cronan, (C.

L. Smerdon with him,) for the plaintiffs.

G. A. Flynn, (C.

E. Fay with him,) for the defendant.

CROSBY, J. This is a bill in equity brought to rescind a completed contract made by the plaintiffs with the Boston transit commission for the construction of Section E of the Dorchester tunnel, so called, and to recover the value of the work done on a quantum meruit. The defendant's demurrer to the bill was sustained by a single justice, who reported the case to this court.

The Boston transit commission was created, and its duties were defined by St. 1894, c. 548, and acts in addition and amendment thereto. The contract in question was authorized by St. 1911, c. 741, and was dated December 16, 1914. Thereafter the plaintiffs completed the contract according to its terms.

The plaintiffs allege that, after the completion of the work, they learned that the boring plans submitted by the transit commission did not show the true character of the material which it would be necessary to excavate and remove; that some of the borings indicated ledge as found in certain locations; that such borings were not shown on the plans but were wilfully concealed by the commission from the plaintiffs; that some of the borings were made with improper and insufficient tools; that the chief engineer of the commission knew or ought to have known that ledge was encountered by the borings; and that the omission from the boring plans of borings showing ledge was for the purpose of deceiving bidders as to the nature of the materials to be removed and to secure at a low cost the performance of the work. And they contend that, by reason of such concealment on the part of the commission, they were put to an additional expense of approximately $240,000 in the performance of the contract, which they seek to recover.

In answer to these allegations the defendant contends, among other things, that the statement on the plans relating to the character of the materials which had to be removed in the performance of the work, were expressions of opinion and were not representations of fact; and that, if the plaintiffs were not willing to accept and be bound...

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