Bay State St. Ry. Co. v. City of Woburn

• Decision Date: 27 February 1919
• Citation: 232 Mass. 201,122 N.E. 268
• Parties: BAY STATE ST. RY. CO. v. CITY OF WOBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 201

122 N.E. 268

BAY STATE ST. RY. CO.

v.CITY OF WOBURN.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 27, 1919.

Report from Superior Court, Middlesex County; Marcus Morton, Judge.

Action by the Bay State Street Railway Company against the City of Woburn. On report to the Supreme Judicial Court. Judgment for defendant.

J. G. Maguire, of Woburn, and A. F. Converse, of Boston, for plaintiff.

Harold P. Johnson, City Sol., of Woburn, for defendant.

RUGG, C. J.

A written contract was executed between the plaintiff and the defendant with the formalities and by the officers required by law on June 18, 1912. It related in general to the transportation by the plaintiff of crushed stone of the defendant for use upon its streets. By article 4 of the contract prices per ton were fixed and it further was provided that:

‘If the aggregate charge for the services of the said street railway company hereunder during the period of one year from the date when the work is commenced, shall at the rate aforesaid be less than the sum of thirty-three hundred and fifty dollars ($3,350), said city will pay to said street railway company the difference between said sum of thirty-three hundred and fifty dollars ($3,350) and the charge for the actual services hereunder at the rate aforesaid.’

It is agreed that the charge for the year from August 13, 1912, when the plaintiff began transporting under the contract, to August 13, 1913, according to the price per ton amounted to $823.43. This action is brought to recover the difference between $823.43 and $3,350, the minimum charge for a year established by the contract. The defendant contends that there can be no recovery because, among other reasons, certain requirements of its charter, St. 1897, c. 172, were not observed respecting the contract.

It is provided by section 42 of the charter that:

‘All contracts made by any department of the city shall, when the amount involved is five hundred dollars or more, be in writing, and no such contract shall be deemed to have been made or executed until the approval of the mayor is affixed thereto. All such contracts shall be accompanied by a bond with sureties satisfactory to the board or committee having the matter in charge, or by deposit of money or by other security for the faithful performance of such contracts, and such bonds or other security shall be deposited with the city auditor until the contract has been carried out in all respects; and no such contract shall be altered except by a written agreement of the contractor, the sureties on his bond, and the officer or board making the contract, with the approval of the mayor affixed thereto.’

It is agreed that no bond was given by the plaintiff to secure the performance of this contract. That is fatal to right of recovery on the part of the plaintiff. The word ‘shall’ in its...