Connor v. Morse

• Decision Date: 14 April 1939
• Citation: 20 N.E.2d 424,303 Mass. 42
• Parties: CONNOR et al. v. MORSE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 42

20 N.E.2d 424

CONNOR et al.

v.MORSE et al.

Supreme Judicial Court of Massachusetts, Essex.

April 14, 1939.

Suit by Henry W. Connor and others, taxable inhabitants of Haverhill, against Charles H. Morse and others, to restrain payment of judgment to named respondent and another. From a final decree for petitioners, the named respondent and another appeal.

Affirmed.Appeal from Superior Court, Essex County; Broadhurst, Judge.

E. B. Karp, of Haverhill, for plaintiffs.

J. M. Albertson and W. S. Soroka, both of Haverhill, for defendants Chas. H. Morse and Clinton F. Goodwin, doing business as Morse, Dickinson & Goodwin.

QUA, Justice.

The petitioners, taxable inhabitants of Haverhill, bring this petition under G.L.(Ter.Ed.) c. 40, § 53, to restrain the city and its officers from paying to the respondents Morse and Goodwin the sum of $6,000, being the amount of a judgment entered by agreement in an action by Morse and Goodwin against the city for architectural services alleged to have been rendered by them as partners in preparing plans for an addition to the ‘Fox School.’

The respondents Morse and Goodwin, appealing from a final decree in favor of the petitioners, contend that the judgment embodies a valid settlement or compromise by order of the municipal council of Morse and Goodwin's claim against the city, which they say amounted with interest to about $11,000.

Enough of the findings of the master will be stated to indicate the grounds upon which this decision rests. In the late summer of 1933 there was under discussion a proposal to build an addition to the ‘Fox School’ with the assistance of the Federal Government under the National Industrial Recovery Act. It would be necessary to file preliminary sketches with the application for Federal funds. After informal conferences with members of the municipal council, members of the planning board, of whom Morse was one, and other city officers, Morse wrote in behalf of his firm a letter to one of the members of the council offering to perform the architectural work for a total of six per cent ‘of the cost of the completed project.’ Morse knew that this member had no power to make a contract. The contents of the letter were made known to the other members of the council, but no vote was ever taken upon it. Morse and Goodwin prepared preliminary sketches and a report showing the estimated costs. An application for funds was made to the Federal Emergency Administration of Public Works, to which was appended copies of the sketches and report. On December 28 the administration voted to grant the loan. Shortly thereafter the mayor, without authority from the council, requested Morse to make complete working plans and specifications. On April 24, 1934, the council voted, in substance, to abandon the project and withdrew the application for a loan. A day or two later Morse exhibited to the council the complete working plans and specifications and demanded as compensation $8,139.60.

No proposal in writing of any contract between Morse and Goodwin and the city was filed in the city clerk's office and no formal vote was passed by the council, both being required by the city charter. St.1908, c. 574, §§ 21, 22. No requisition was signed by the commissioner or board in charge of the department and approved by a majority of the council, as required by Part 6, §§ 1 and 2, of the city ordinances. Requirements possibly alternative were likewise not met. The school committee did not approve the complete working plans and specifications as required by section 35 of the charter. See, also, G.L.(Ter.Ed.) c. 43, § 34. The planning board did not examine and report upon them, as required by the ordinance. The Federal Government never made any loan. The plans and specifications were not used. The addition to the school was not built. It is not contended that there was any valid contract to pay the architects for the plans or for their work in making them.

In November, 1935, Morse and Goodwin brought in the Superior Court an action against the city for their services. At the trial of that action in November, 1937, the weaknesses of their claim appeared, and a verdict was directed for the city. Morse and Goodwin filed exceptions. The city solicitor advised the mayor that in his opinion the exceptions would not be sustained, although he ‘allowed the possibility’ that the verdict might be set aside. He refused to advise a settlement. Four previous city solicitors had successively advised the mayor that Morse and Goodwin had no legal claim. Nevertheless, on May 26, 1938, while the exceptions were still pending, the municipal council (which include the mayor), with knowledge of the solicitor's opinion, passed an order purporting to ratify all the acts of the officers and agents of the city relative to the plans and specifications and directing the city solicitor to ‘adjust the suit’ by entering an agreement for judgment for Morse and Goodwin in the sum of $6,000. Such agreement was filed, and judgment was entered. The order of May 26 was not allowed to remain on file in the city clerk's office for one week before it was passed, as is required by St.1908, c. 574, § 22, in the case of an order ‘making or authorizing the making of any contract involving a liability on the part of the city in excess of two thousand dollars.’ The mayor refused to vote for this order unless all the aldermen would vote for it. An assurance of a unanimous vote ‘seemed necessary to them before they would act.’ When the order was passed, the members of the council ‘believed that the architects did not have a valid legal claim against the city for the reason that whatever was done did not comply with the statutory provisions and ordinances,’ but ‘they did believe strongly that some compensation ought to be given to the architects for the work they had done and the expense they had incurred.’ They ‘did not believe that there was a reasonable probability that the architects would ultimately recover’ in their action, but ‘they did believe, apart from legal technicalities, that the architects had rendered their said services in good faith and in expectation of payment, and that by ordinary standards of business fairness they should be compensated for their services.’ They considered $6,000 to be ‘reasonable compensation.’ They ‘were not arbitrary or fraudulent but acted upon an honest conviction of what they deemed to be a fair solution of the problem.’ They believed that the referenceto ratification in the order ‘would validate their act from a legal point of view.’

We do not consider whether this case could be decided upon the somewhat narrow ground that the order of May 26, 1938, upon which the alleged settlement was founded, was not itself legally adopted because of the failure to file it in advance as required by the charter. Merrill v. Lowell, 236 Mass. 463, 128 N.E. 862. On all the facts found we cannot agree with the appellants that the order, even if the manner of its adoption had been free from defect, would have effected a compromise in good faith of a disputed claim. See Prout v. Pittsfield Fire District, 154 Mass. 450, 28 N.E. 679. By May, 1938, very little of substance was left in the claim of Morse and Goodwin. It was almost self evident that conditions precedent to the incurring of a valid obligation imposed by the charter and ordinances had not been observed. The city had been advised repeatedly that the claim was not valid. After a trial a verdict had been directed in its favor. Morse and Goodwin had performed none of the work of supervision, to which in their original letter they had allocated about a third...