Commercial Wharf Corporation v. City of Boston

• Decision Date: 04 April 1911
• Citation: 94 N.E. 805,208 Mass. 482
• Parties: COMMERCIAL WHARF CORPORATION v. CITY OF BOSTON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 482

94 N.E. 805

COMMERCIAL WHARF CORPORATION v. CITY OF BOSTON (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1911

COUNSEL

Tyler & Young B. E. Eames, and C. W. Hood, for plaintiff.

J. D McLaughlin, for defendant.

OPINION

BRALEY J.

It was said upon exceptions taken by the plaintiff at the first trial of these cases, after a verdict had been ordered for the defendant, that 'no question seems to have been made but the lease and the extension for five years from December 1, 1906, were duly executed, and became binding upon the defendant. Nor was there any dispute that for any occupation of a whole or a part of the leased premises after the term of the lease as extended had expired the defendant would be liable to pay rent at the rate stipulated in the lease. The question at issue was whether there had been such occupation,' and it was decided that 'the liability of the defendant depended upon whether it actually had occupied any part of the leased premises during the period sued for, and this presents a question of fact to be determined by the jury.' Commercial Wharf Corp. v Boston, 194 Mass. 460, 466, 468, 80 N.E. 645, 647. The cases are now before us on the defendant's exceptions after verdicts for the plaintiff at the second trial, upon the original declaration counting on the covenant in the lease that the defendant should pay rent at the same rate for such further time as it should hold the premises after the lease expired, and the amended declaration with a count for use and occupation during the periods in dispute.

It being alleged that both counts are for the same cause of action, they are inconsistent. If the defendant held over without any further agreement, it was a tenant at sufferance, and would be liable for the rent at the rate reserved in the lease, until the premises were vacated. Rev. Laws, c. 129, § 3; Edwards v. Hale, 9 Allen, 462; Warren v. Lyons, 152 Mass. 310, 25 N.E. 721, 9 L. R. A. 353; Benton v. Williams, 202 Mass. 189, 88 N.E. 843. The distinction between an action on a covenant of this nature, and on an implied contract creating a tenancy at will where the occupation continues beyond the term, is stated in Leavitt v. Maykel, 203 Mass. 506, 510, 89 N.E. 1056, 133 Am. St. Rep. 323. See Mullaly v. Austin, 97 Mass. 30, 31.

But no request was made that the plaintiff be required to elect, and if the evidence supports either count, the general verdict will stand, and judgment may be entered on that count. Brown v. Woodbury, 183 Mass. 279, 67 N.E. 327; West v. Platt, 127 Mass. 367, 371.

The defendant's request for rulings, that upon all the evidence the plaintiff was not entitled to recover, and that the jury would not be warranted in finding that it was a tenant at will, having been denied, the city contends that, as a municipal corporation whose powers were defined by statute, it was not bound by either the lease, or the agreement of extension, and that the evidence was insufficient to justify the finding of its occupancy of the premises, or if sufficient it is not responsible under an implied agreement to pay for use and occupation.

The former opinion did not discuss or determine these questions. We take them up for decision in the order stated. The votes of the city council 'authorized' the board of health to lease the premises as 'a location for a boat landing,' and when the original lease was about to expire to renew the lease for a further term, the rental 'to be charged to the appropriation for city council incidental expenses.' But the lease and agreement of extension were not signed by the board, and, on the face of the instrument, the city never became obligated unless bound by the mayor's execution of the contracts in its behalf. The mayor acted under the votes. If the first vote was invalid, the second falls with it. St. 1885, c. 266, § 12, relating to the chartered powers of the defendant, and in force when the votes were passed, contains this provision: The city council shall not '* * * directly or indirectly take part in the employment of labor, the making of contracts, the purchase of materials or supplies, the construction, alteration or repair of any public works, buildings, or other property, or the care, custody and management of the same, or in the conduct of any of the executive or administrative business of the city, or in the expenditure of public money, except such as may be necessary for the contingent and incidental expenses of the city council or either branch thereof. * * *' The board alone under section 6 had authority to make the necessary contracts, required in the proper management of the health department. If under St. 1890, c. 418, § 6, where the expenditure involved equals a certain amount, the mayor's approval in writing must be obtained or the contract is not valid, the mayor's power to act is limited to contracts which originate with the departments, the proper discharge of whose administrative functions renders the contract advisable or necessary. By section 12 the city council was not a department within the purview of the statute, and could not make contracts. The original execution of the lease, and the indorsement on the lease of the extension of the term, by the respective mayors who held office at the time, were inoperative and void.

The appropriation, moreover, was provided for its own incidental expenses as a distinct municipal body. It could not annually be increased for a purpose wholly foreign, by adding the amount of the yearly rent to accrue under the lease, or lawfully be transferred, and diverted...