Adalian Bros. v. City of Boston
| Decision Date | 03 February 1949 |
| Citation | 84 N.E.2d 35,323 Mass. 629 |
| Parties | ADALIAN BROTHERS, INCORPORATED v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 1, 1948.
Present: QUA, C.
J., RONAN, WILKINS SPALDING, & WILLIAMS, JJ.
Municipal Corporations, Contracts, Municipal finance. Boston. Contract Validity, With municipality, Implied.
Recovery from the city of Boston of the price of rugs, ordered by the mayor and delivered for use in his office at a time when there was no appropriation out of which they could be paid for, was barred by Section
16 of the city charter, St. 1909, c. 486.
Limitations in the charter of the city of Boston on the contracting power of officers for the purchasing of equipment cannot be evaded by a dealer delivering equipment without an express contract enforceable under the charter provisions and then claiming upon an implied contract for goods sold and delivered; there is no implied contract in such circumstances.
CONTRACT. Writ in the Municipal Court of the City of Boston dated February 27 1946.
On removal to the Superior Court, the case was heard by Brogna, J., upon an agreed statement of facts.
E. F. Cooley, Assistant Corporation Counsel, for the defendant.
J. H. Soble, (S.
A. Aisner with him,) for the plaintiff.
This action to recover upon a case stated the sum of $4,595.50 as the price, with interest, of three rugs alleged to have been sold and delivered by the plaintiff to the defendant comes here by appeal after an order for judgment for the plaintiff.
In February of 1945 the then mayor ordered the rugs for use in his office, and they were delivered in March, but there was no appropriation out of which they could be paid for. The city retained them without paying for them. On December 31, 1945, the acting superintendent of buildings wrote the mayor recommending that the rugs "be purchased" and requesting permission to purchase them "without further advertising." [1] On the same day the mayor forwarded a communication to the city council submitting to it the letter of the acting superintendent of buildings and recommending the passage of an accompanying order to provide an appropriation to pay for the rugs. Still on the same day the city council passed the order, which appropriated a sum equal to the price claimed for the rugs, "to be expended, under the direction of the superintendent of public buildings, for C equipment." The letter from the acting superintendent of buildings to the mayor, the communication of the mayor to the city council, and the proceedings of the council were printed in the "City Record." The auditor disallowed the plaintiff's bill. Thereafter the defendant requested the plaintiff to remove the rugs and later caused them to be stored in a warehouse.
The original attempt of the mayor to buy the rugs at a time when there was no appropriation available to pay for them created no enforceable contract. It is provided by St. 1909, c. 486, Section 16 (city charter of Boston), that "No official of said city, except in case of extreme emergency involving the health or safety of the people or their property, shall . . . involve the city in any contract for the future payment of money in excess of" the appropriations duly made in accordance with law, with a further exception not here material. The purchase of rugs for the mayor's office was not in consequence of any "extreme emergency" of the kind mentioned in this statute. Persons dealing with a municipality must take notice of limitations of this kind upon the contracting power of the municipality and are bound by them and cannot recover upon contracts attempted to be made in violation of them. Dyer v. Boston, 272 Mass. 265 , 273-274. McHenry v. Lawrence, 295 Mass. 119 , 122. Peters v. Medford, 295 Mass. 588 . Continental Construction Co. v. Lawrence, 297 Mass. 513 . Baker v. Commonwealth, 312 Mass. 490, 492. Commissioners of Woburn Cemetery v. Treasurer of Woburn, 319 Mass. 86 , 91.
It is not easy to make out from the case stated that after the appropriation of December 31 any attempt was made to enter into any new express contract as distinguished from an attempt to perform the contract purportedly made in February. So far as appears the only communication between the parties consisted in the return to the plaintiff of some rugs other than those here involved and the submitting by it of another bill for the...
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