Blaisdell v. Inhabitants of Town of York

• Decision Date: 01 July 1913
• Parties: BLAISDELL v. INHABITANTS OF TOWN OF YORK.
• Court: Maine Supreme Court

87 A. 361

110 Me. 500

BLAISDELL

v. INHABITANTS OF TOWN OF YORK.

Supreme Judicial Court of Maine.

July 1, 1913.

Report from Supreme Judicial Court, York County, at Law.

Action by Edward B. Blaisdell against the inhabitants of the Town of York. On report from the trial court. Judgment for plaintiff.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, and BIRD, JJ.

Cleaves, Waterhouse & Emery, of Biddeford, Frank D. Marshall, of Portland, and John C. Stewart, of York Village, for plaintiff.

James O. Bradbury, of Saco, and E. P. Spinney, of North Berwick, for defendants.

CORNISH, J. This is an action of assumpsit brought by the plaintiff to recover the sum of $51,066.71, the amount alleged to be due him under two contracts made with the defendant town for the construction of a way and bridge across York river. The declaration contains one count for breach of contract, another on an account annexed for labor performed and materials furnished, and also the common counts.

This is one and well-nigh the final chapter in a varied and prolonged litigation arising from the laying out and construction of the York Bridge, so called, connecting the towns of York and Kittery.

The history of the case is this:

The first step towards the laying out and construction of this way and bridge was taken when the selectmen of York, two of whom continued to act in that capacity during all the subsequent controversy, petitioned the Legislature for the passage of a special act authorizing the construction of a highway and bridge across York river. Such an act was necessary because the proposed way and bridge would cross tidewaters. Cape Elizabeth v. County Com'rs, 64 Me. 456; Chapin v. Maine Central R. R. Co., 97 Me. 151, 53 Atl. 1105; Chase v. Cochrane, 102 Me. 431, 67 Atl. 320. This authority was conferred by chapter 50 of the Private and Special Laws of 1905, which was approved and took effect February 17, 1905.

On April 4, 1905, Seabury Wells Allen and 169 other residents and taxpayers of the defendant town petitioned the county commissioners of York county to lay out the way in question as one required by common convenience and necessity. This petition was entered at the April session, 1905; hearing was had on May 18, 1905; the petition was granted and the way laid out. The matter was then continued to the January session, 1906, when the report was recorded and the proceedings closed. From this action of the county commissioners no appeal was taken.

At the annual meeting held in March, 1906, an article was inserted in the warrant to see if the town would appropriate a sufficient sum of money for the construction of the bridge and highway as laid out by the county commissioners. This article was indefinitely postponed.

A special town meeting was held on October 13, 1906, "to see if the town will vote to build the bridge and approaches as laid out by the county commissioners across York river at York Harbor." This is the crucial meeting in this case, because the plaintiff bases his rights upon the action then taken.

Upon a written ballot being taken, the whole number of ballots cast was 297, of which 174 were in favor of building and 123 were opposed.

"On motion of Mr. Gifford, a committee of four was chosen to act in conjunction with the selectment in building the bridge, said committee, as suggested by Mr. Gifford, to consist of Charles H. Young, Joseph W. Simpson, Charles E. Weare, and J. Perley Putnam; said committee to serve without pay."

As the record was first made, it was "voted to accept the bid of E. B. Blaisdell for $30,000." By order of court, upon mandamus proceedings subsequently brought, the record was changed by inserting the word "not" after "voted," so that it now stands, "Voted not to accept the bid of E. B. Blaisdell for $30,000."

On the same day, October 13, 1906, the three members of the board of selectmen, and the four persons above named appointed to act in conjunction with them, met and chose Charles H. Young permanent chairman; the selectmen not voting. On October 17, 1906, the seven members met again by adjournment and chose Mr. Bragdon, who was chairman of the selectmen, secretary of the committee, but he declined to serve. A discussion followed as to the duties and powers of the three selectmen and of the four associates; the former claiming that in fact the selectmen and the associates constituted two committees, one composed of three and the other of four members, while the associates contended that one committee of seven had been appointed by the town. It was finally agreed that each faction should consult counsel. This was done, and on October 22, 1906, another meeting was held at which, after discovering that each faction had obtained legal advice substantiating its previous claim, the selectmen informed the other members that they would no longer act with them and withdrew. At this meeting J. Perley Putnam was chosen permanent secretary; the selectmen taking no part Prom that time on the selectmen attended no other meetings of the committee, although they were duly notified of each meeting.

For convenience we will designate hereafter the selectmen by that name, and the remaining four as the committee; it being understood that in each instance all the members were present and their votes were unanimous.

On October 25, 1906, the committee met and voted to employ R. W. Libby as engineer, but he declined to serve; and on October 30, 1906, they voted "to engage A. W. Gowen to take levels, change plans, and take charge of the construction of the bridge." It was also "voted to adopt the plans with some changes that were offered for inspection at the special town meeting of October 13, 1900."

On November 5, 1906, it was voted to prepare proposals for bids to be in the hands of the secretary not later than November 14, 1906.

On November 16, 1906, "an injunction was read which had been served upon Mr. Young, restraining the committee from awarding the contract for the bridge."

On November 30, 1906, Mr. Young "reported from Joseph P. Bragdon that no further action would be taken in relation to the injunction now pending in court"; and at the same meeting the bids were opened and the contract was awarded to E. B. Blaisdell, the plaintiff, he being the lowest bidder, for the sum of $39,500.

On December 5, 1906, a written contract which forms the basis of this action was entered into between the plaintiff and the town of York; the same being signed in behalf of the town by the four members of the committee only.

At various times subsequent to this the selectmen sent communications both to the contractor and to the committee protesting against the carrying out of the contract, denying its validity and all liability on the part of the town in connection therewith.

The Legislature of 1907 passed a private and special act (chapter 101) which took effect February 21, 1907, and was in these terms:

"The vote of the inhabitants of the town of York, passed in town meeting October 13, 1906, appointing a committee of four to act in conjunction with the selectmen of said town in building a bridge across York river as laid out and ordered by the county commissioners of the county of York, and the action of said committee in behalf of said town in petitioning the Secretary of War and the chief of engineers that the location and plans of said bridge be approved, and that the said town be authorized to commence the construction thereof and maintain the same as provided by law, are hereby authorized and ratified."

At the next annual town meeting held in March, 1907, various articles were submitted to the voters, viz.:

"To see what action the town will take for the construction and maintenance of the proposed bridge and approaches across York river which the county commissioners have ordered to be built," etc.

"To see what action the town will take for the payment of all contracts and bills to be legally entered into for the proposed construction and maintenance of the proposed bridge," etc.

"To see if the town will authorize its board of selectmen to obtain proper surveys, drawings, contracts and specifications relating to the proposed construction of bridge and approaches across York river and to enter into such contracts therefor as said board shall consider wise," etc.

All these articles were indefinitely postponed.

Another article read: "To see what action the town will take relative to the committee of four appointed at a town meeting held October 13, 1006, in connection with the proposed construction of said bridge." Upon this it was voted "that the committee be dismissed from further service."

The contractor began work regardless of the protests, and from time to time, as the work progressed, the committee drew orders in favor of the contractor upon the town treasurer in accordance with the certificate of the engineer in charge, and payment of each was demanded. No single one of them was honored after April 1, 1907.

In September 1907, the War Department required certain changes in the work, causing additional expense; and on October 17, 1907, a supplemental contract to cover these changes was entered into between the plaintiff and the committee acting in behalf of the town; the agreed price being $9,118.65, with a deduction from the former contract price of $2,128.22, making a net increase of $6,990.43.

January 29, 1908, the engineer notified the entire committee of seven that the bridge and way were so far completed that the plaintiff was entitled to the balance of 80 per cent. under the contract. The committee accepted the work and notified the selectmen, who replied on March 18, 1908, declining to recognize any authority on the part of the committee to act for the town in any matter relating to the bridge.

May 16, 1908, the committee notified the selectmen that the work was completed at a total expense of $49,765.63, for which amount they had drawn orders upon the town...