Dealtry v. Selectmen of Town of Watertown

• Decision Date: 08 April 1932
• Parties: DEALTRY et al. v. SELECTMEN OF TOWN OF WATERTOWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 22

180 N.E. 621

DEALTRY et al.

v.SELECTMEN OF TOWN OF WATERTOWN.

Supreme Judicial Court of Massachusetts, Middlesex.

April 8, 1932.

Report from Supreme Judicial Court, Middlesex County; John C. Crosby, Judge.

Action by Clarence W. Dealtry and others against the Selectmen of the Town of Watertown and others, in which the General Crushed Stone Company was permitted to intervene as party defendant. Demurrers were sustained to plaintiffs' petition, and questions raised thereby were reported to Supreme Judicial Court.

Decree affirmed.

C. W. Dealtry, of Boston, for plaintiffs.

A. Julian, of Boston, for defendant Selectmen of Watertown and others.

A. Leonard, of Boston, for defendant John P. Condon Corporation.

H. Williams, Jr., of Boston (G. A. Furness and F. J. McNamara, both of Boston, of counsel), for defendant General Crushed Stone Corporation.

SANDERSON, J.

The plaintiffs are fifteen taxable inhabitants of the town of Watertown. The defendants are the selectmen, superintendent of streets, engineer, auditor and treasurer of the town, and the John P. Condon Corporation, the contractor. The General Crushed Stone Company, a corporation, was allowed to intervene as a party defendant. The three demurrers filed to the bill and amended bill were sustained on the first and fourth grounds and the questions raised by the demurrers reported to the full court. The demurrers are identical in the statement of the first ground, namely, that the plaintiff's ‘have not stated such a case as entitles them to any relief in equity against the defendants.’ Two of the demurrers are substantially in the same form in the statement of the fourth ground, namely, ‘That it appears by the plaintiffs' petition that in doing the acts complained of, the defendants Edward P. Furber, Eric L. Johnson, Clifford S. Lovell, Pierce P. Condon, Otis W. Allen, Willie W. Norcross, Jr., and Harry W. Brigham, were acting in the performance of the public duty imposed by law.’ The town officials in stating their fourth ground of demurrer have used the same language but added at the end the words ‘and within their discretionary powers.’

The bill purports to be brought under G. L. c. 40, § 53, which reads as follows: ‘If a town or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said town for any purpose or object or in any manner other than that for and in which such town had the legal and constitutional right and power to raise or expend money or incur obligations, the supreme judicial or superior court may, upon the petition of not less than ten taxable inhabitants of the town, determine the same in equity, and may, before the final determination of the cause, restrain the unlawful exercise or abuse of such corporate power.’

A statement of facts, substantially as follows, may be found in the bill and amendment thereto: In 1930 the John P. Condon Corporation was awarded the contract for paving part of North Beacon street, in Watertown, and laid the paving with material manufactured in and supplied from the quarries of the General Crushed Stone Company, a corporation having a usual place of business in the town of Winchester. A corporation operating in these quarries was in 1930 a licensee of the Amiesite Asphalt Corporation of America which then held and still holds a patent upon the materials used. In 1931 the town made an appropriation for extending the paving of North Beacon street and also the paving of a part of Pleasant street, and on September 24 and 25, 1931, the selectmen advertised for bids on the resurfacing referred to and specified ‘Winchester Non-Skid Bituminous Concrete Pavement,’ a material prepared and sold by the defendant General Crushed Stone Company and which had been used in 1930 to resurface a portion of one of the streets. One of the nine bids was submitted by a man named McCue, who, instead of bidding on the ‘Winchester’ material called for in the specifications, based his bid on a material called ‘Amiesite.’ McCue had attempted unsuccessfully to secure a price from the General Crushed Stone Company on the specified material. The selectmen rejected all bids, and on October 15 and 16, 1931, again advertised asking for bids for resurfacing portions of the two streets. This time they asked for bids on five types of specifications, the third of which, called ‘Type C,’ is alleged to be substantially and withoutany material alteration the specification of the patented material of Amiesite Asphalt Corporation of America. The bids were publicly opened and read on October 23, 1931, as announced in the advertisements. The John P. Condon Corporation was the lowest bidder, at $.85 per square yard on ‘Type C,’ while McCue was the next lowest bidder, with a bid of $.94 per square yard on ‘Type C,’ Counsel for McCue thereupon filed with the selectmen a letter informing them that the Massachusetts Amiesite Company was the only licensee of the Amiesite Asphalt Corporation of America entitled to sell ‘Type C’ material in Watertown. Thereafter, on the same day, the selectmen unanimously awarded the contracts to the John P. Condon Corporation, the lowest bidder, at $.85 per square yard on said ‘Type C.’ The selectmen, while admitting that they had notice from counsel for McCue of the patent situation, said that they doubted the validity of the patent and therefore awarded the contracts. The validity of this patent is denied by the General Crushed Stone Company, which offered to furnish the selectmen with a bond protecting the town against any liability or loss from patent litigation. The plaintiffs also state that there has been collusion and favoritism in the awarding of the contracts to the John P. Condon Corporation; that the selectmen have abused their power and exposed the town of Watertown and its taxpayers to the danger of costly litigation; that the selectmen, the superintendent of streets, and the John P. Condon Corporation have acted in bad faith, and that the defendants are about to expend money and incur obligations purporting to bind the town of Watertown for purposes other than those for which the town has the legal and constitutional right to raise and expend money or incur obligations; that the infringement of a patent is unlawful and in violation of the laws of the United States of America, for which the town may be held liable to the holder of the patent; and that the work under the contracts has been completed, but payment has not been made therefor.

In their original bill the plaintiffs sought to restrain the John P. Condon Corporation from constructing or laying the paving called for by contracts with the town, and the town officials from paying any money for the expense of furnishing or laying the materials in connection with the contracts with the town. Before the amended bill was filed the work of constructing the paving or resurfacing of the streets had been completed, and the prayers of that bill were that the John P. Condon Corporation be enjoined from making any claim or prosecuting any suit against the town for payment for services or materials furnished in connection with the contracts, that the Condon corporation and all defend...