Curran v. Inhabitants of Holliston

• Decision Date: 17 January 1881
• Citation: 130 Mass. 272
• Parties: Andrew Curran v. Inhabitants of Holliston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 272

Andrew Curran v. Inhabitants of Holliston

Supreme Court of Massachusetts

January 17, 1881

Middlesex. Contract upon an account annexed for work and labor. Answer a general denial. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court in substance as follows:

In March 1878, Cornelius J. Driscoll and two other persons were legally elected selectmen and surveyors of highways of the defendant town, and all three served in both capacities for one year. On April 20, 1878, Driscoll, as such highway surveyor, employed the plaintiff to work on the highways in Holliston; and the plaintiff worked on the highways all of that day and a few hours on the following day, when he was notified by the other two surveyors to stop work, as it would not be paid for by the town; but Driscoll told him to continue the work, that the town was good for it, and he would be responsible. The plaintiff thereupon continued to work, until the work he was ordered to do by Driscoll was finished, working eleven days and four hours in all. He then demanded pay for the work of the selectmen of the town, and was refused payment.

The by-law of the town regulating the payment of money from the treasury of the town is as follows: "No money shall be paid out of the town treasury except on written orders drawn and signed by the selectmen."

On September 2, 1878, a meeting of the inhabitants of the town was duly held under a warrant containing the following article: "To see if the town will instruct the selectmen to pay certain claims against the town for work done on the highway under the direction of Cornelius J. Driscoll, one of the highway surveyors of said town, or take any other action in relation to said claim." At that meeting the following vote was passed: "Voted, that the selectmen instruct the town treasurer to pay on demand the men who worked on the highways under Cornelius J. Driscoll." The plaintiff is one of the men who so worked under Driscoll and, though often requested, the selectmen have refused to instruct the town treasurer to pay, and the treasurer, though in funds, has never paid the plaintiff for his work, or any portion of it. No other or different action has been taken by the town. The work which the plaintiff seeks to recover for was done on the ways of the town, which it was legally bound to keep in repair, and was of benefit to the town.

The defendant put in evidence the testimony of the other two selectmen and highway surveyors, Stone and Thompson, who testified that they notified the plaintiff some time on the morning of the plaintiff's second day's work to stop work, and that the town would not pay for the work. They further testified, that in the opinion of both, as highway surveyors, the money to be expended in paying for the work to the plaintiff, or any portion of it, would not be carefully and...