City of Quincy v. Brooks-Skinner, Inc.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation325 Mass. 406,91 N.E.2d 206
PartiesCITY OF QUINCY v. BROOKS-SKINNER, Inc. (two cases).
Decision Date03 March 1950

325 Mass. 406

91 N.E.2d 206

BROOKS-SKINNER, Inc. (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

March 3, 1950

Argued Dec. 23, 1949.

[91 N.E.2d 207] J. W. Bartlett, Boston (W. G. Guernsey, Boston, with him), for petitioner.

E. Russell Greenhood, Boston, for respondent.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and COUNIHAN, JJ. [325 Mass. 407]

SPALDING, Justice.

These are two petitions for writs of review of judgments entered in a District Court. In one, the petitioner sought review of a judgment which the respondent [325 Mass. 408] obtained against it in an action of contract based on a declaration for work done and materials furnished according to an account annexed. In the order, the judgment was entered in an action commenced by trustee process and was based on the earlier judgment obtained in the action of contract. To this petition the respondent demurred. For convenience we shall refer to the petition to review the original judgment as the first, and that to review the judgment based on that judgment as the second. In the District Court the first petition was granted, and the demurrer to the second petition was sustained. Appeals were taken to the Superior Court in both cases. This was the correct procedure. See G.L. (Ter.Ed.) c. 231, § 97; Lynn Gas & Electric Co. v. Creditors' National Clearing House, 235 Mass. 114, 126 N.E. 364; Home Finance Trust v. Rantoul Garage Co., 300 Mass. 86, 88, 14 N.E.2d 153. In the Superior Court the demurrer to the second petition was overruled, and both petitions were then heard on a statement of agreed facts.

The facts may be summarized as follows: In 1941 the board of managers of the Quincy City Hospital were alarmed by the increase in the daily number of personal injury cases attributable to the Fore River Shipyard, in consequence of which the existing hospital facilities were overtaxed, [91 N.E.2d 208] and by the possibility that a major catastrophe might occur at the plant. In response to the board's request for additional facilities, the mayor looked into the matter and learned that the respondent had the necessary materials and labor to erect a satisfactory temporary structure in about six weeks. On two occasions in 1941 the mayor asked the city council for 'loan orders' by which to finance this project, but the requests were not approved. Blueprints and specifications for the proposed addition were prepared under the direction of the hospital's board of managers, and under date of June 9, 1941, the respondent submitted a written and signed bid to the city quoting a price of $20,760 for the erection of the addition. The city solicitor advised the mayor that there was $140,000 of unexpended general expense appropriation to the credit of [325 Mass. 409] the hospital department and that, in view of the 'war emergency', this was an obligation which could be incurred against the appropriation without advertising for bids or following the other requirements of the General Laws and city ordinances. At the time the contract hereinafter mentioned was made, and at the time the respondent's bill for work and materials furnished under it was presented to the city, there was an unexpended balance of the general expense appropriation to the hospital department sufficient to cover the contract 'if the said contract and work were properly chargeable to that appropriation.' The mayor signed and accepted the bid on behalf of the city, notified the respondent that this had been done, and requested it to begin work immediately. With the exception of this bid, no written document was executed by the parties. No copy of any contract was retained by the hospital department or the commissioner of public works, and none was filed with the city auditor or city clerk. There was no public advertising for bids.

The respondent immediately commenced work on the addition. [1] Before the work was completed the city council notified the mayor that the contract with the respondent for the erection of a temporary building 'had not been and would not be approved * * * [by them] and that a permanent addition had been voted instead.' The mayor thereupon cancelled the contract with the respondent, with the stipulation that the fair value of the materials and labor furnished would be paid by the city. The respondent submitted an itemized bill for $5,662.50, which was approved by the commissioner of public works. It is agreed that the bill was fair and accurate.

Since the auditor had publicly announced that he would refuse payment of the bill, the respondent brought an action against the city in the District Court. The city, by its solicitor, appeared and answered. When the case came on for trial, 'in place of a formal trial, the attorneys [325 Mass. 410] for the * * * parties presented their evidence orally.' The city solicitor stated that in view of the existing 'war emergency' he was satisfied that the General Laws and the ordinances of the city had been complied with, and that the city had no legal defense to the action. 'The trial judge, after asking further questions and receiving answers thereto, found for the plaintiff on its declaration.'

After judgment had been entered, the respondent commenced an action on it by trustee process in which three banks were named as trustees. The city appeared and filed an answer, but was defaulted when the case was called for trial. Thereafter a judgment for the respondent was entered, and an execution issued which was subsequently returned to court with the indorsement that it had been satisfied in full.

With respect to the first petition the judge of the Superior Court ruled as follows: 'On the agreed statement of facts the * * * [petitioner] had ample opportunity, through its city solicitor, to present its defense. The judgment was not obtained by default or mistake. Within my discretion, the petition for review is denied.' He also dealt with several requests for rulings submitted by the petitioner, granting some and denying others. The [91 N.E.2d 209] judge denied the second petition 'as a matter of discretion.' Since the petitioner had apparently lost the right to come here by appeal or exceptions, the judge, to determine the correctness of his rulings, reported the cases to this court 'in the event that and in so far as * * * [he had] the power' to do so.

At the outset it becomes necessary to determine whether the judge had the power to report the cases. The authority given to the Superior Court under G.L. (Ter.Ed.) c. 231, § 111, to make reports to this court extends only to questions of law. Atlantic Maritime Co. v. City of Gloucester, 228 Mass. 519, 522, 117 N.E. 924; Scaccia v. Boston Elevated Railway, 308 Mass. 310, 314, 32 N.E.2d 253; Winslow Bros. & Smith Co. v. Hillsborough Mills, 319 Mass. 137, 141, 65 N.E.2d 1. Since the cases were presented upon a case stated, the requests for rulings reported had no standing and brought no questions of law to this court. It was the duty of the judge to order the correct judgment on the [325 Mass. 411] case stated. Howland v. Stowe, 290 Mass. 142, 146, 194 N.E. 888; Associates Discount Corp. v. Gillineau, 322 Mass. 490, 491, 78 N.E.2d 192. If any question is brought here by this report, it is only such as may arise out of the orders denying the petitions.

The respondent urges that these orders were discretionary and therefore present no questions of law. Consequently, it is argued, the court was without power to report the cases. We cannot agree. It is true that the granting or denial of a petition for a writ of review 'rests substantially in the sound discretion of the court, the exercise of...

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