Cutler v. Ashland

• Decision Date: 29 January 1877
• Parties: Francis Cutler v. Inhabitants of Ashland
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 588

Francis Cutler v. Inhabitants of Ashland

Supreme Court of Massachusetts

January 29, 1877

[Syllabus Material]

Middlesex. Contract to recover $ 800 for building a town way in Ashland. Writ dated June 10, 1874.

At the trial in the Superior Court, before Colburn, J., it appeared that the town authorized the road to be built, and the road commissioners, by its authority, let it to the plaintiff, who was the lowest bidder, for $ 800, and he built the road; and that the road commissioners, after letting the contract to the plaintiff, made the following memorandum:

"Specification for building a town way in Ashland.

"For building a town way leading from Cherry Street to and across the Hopkinton Railroad, as by the road commissioners reported to and allowed by the town at a meeting held the 27th day of August, A. D. 1873.

"First. All the earth above the grade line between Cherry Street and the Hopkinton Railroad tracks, excepting such portions of said earth as shall be required on the line of said way to bring the work up or to the grade line, is to be removed across the railroad tracks and discharged within the bounds of or width of fifty feet in a straight line from railroad tracks, and also from Cherry Street, and to bring the surplus filling up to a level with said railroad tracks, and to be continued in like manner so far as the material will go.

"Second. There shall be a culvert three feet wide by four feet deep in the clear, with covering to lap on the foundations six inches each side, said culvert to be built the west side of said Hopkinton Railroad, the place that the commissioners may point out, and also said culvert to be built on good foundations, sufficient width to carry water outside the limits of highway.

"Third. All rocks shall be excavated and taken out at least one foot below the grade line, and removed outside the limits of said way.

"Fourth. Along each side, and distant six feet from the outside lines of said way, there shall be gutters sunk of ten inches depression below the grade line, the inner ledge of which shall be a graded slope to the centre of the way, leaving a smooth and rounded surface from gutter to centre, and completed in a workmanlike manner to the satisfaction and acceptance of the road commissioners.

"Fifth. Whenever one half of the work to be done shall be estimated and accepted by the commissioners as having been performed the contractor shall be entitled to receive a proportionate value of the full sum agreed upon, less 25 per cent., which drawback and balance of the price to be paid shall become due and payable on the completion of the work and its acceptance by the said commissioners of Ashland.

"Sixth. The work shall be commenced by the contractor immediately upon the signing of contract, and completed to the satisfaction and acceptance of the road commissioners of Ashland on or before the fifth day of December, A. D. 1873.

"Francis Cutler.

"Warren Morse, "Willard Aldrich,

Road Commissioners for Ashland, Mass."

A few days after making this memorandum, the road commissioners, at the request of the plaintiff, added and signed the following agreement:

"We the subscribers, the road commissioners aforesaid, agree to pay to Francis Cutler of Holliston, in county of Middlesex, the sum of eight hundred dollars, in manner and form on the condition as herein expressed in the foregoing specification.

"Warren Morse, "Willard Aldrich,

Commissioners of Ashland."

After this action was begun, the plaintiff made a settlement with the selectmen of the defendant town, by which he gave a receipt in full, and also made an agreement to enter the action neither party, and that entry was made. Charles H. Tilton made application to the court to have the entry stricken off, and the action brought forward for trial, contending that he had an assignment of the sum due to the plaintiff, and that the settlement was made in fraud of his rights. The court so ordered, and the action was tried on the question whether Tilton had such an assignment, and whether the selectmen had notice thereof. Tilton introduced in evidence the following paper, under seal, signed by the plaintiff, and dated June 21, 1873:

"Know all men by these presents, that I, Francis Cutler, in consideration of eight hundred dollars to me paid by Charles H. Tilton, do hereby assign and set over the obligation hereto annexed, signed by Warren Morse, Willard Aldrich, Road Commissioners for Ashland, Mass., bearing date A. D. 1873 and all moneys now due and to become due thereon, unto the said Charles H. Tilton, his executors, administrators and...