Dos Santos v. City of Peabody

• Decision Date: 27 June 1951
• Citation: 99 N.E.2d 852,327 Mass. 519
• Parties: DOS SANTOS v. CITY OF PEABODY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 852

99 N.E.2d 852

327 Mass. 519

DOS SANTOS v.CITY OF PEABODY.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 5, 1951.

Decided June 27, 1951.

J. A. Liacos, Peabody, for plaintiff.

G. Ankeles, City Sol., Peabody, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and COUNIHAN, JJ.

COUNIHAN, Justice.

This is an action of contract to recover for breach of an alleged written contract.The answer of the city among other defences, sets up illegality of the contract.The contract dated June 25, 1945, purported to be one for the collection of garbage in three wards of the city for a period of three years for which the plaintiff was to receive $35 a week.There was an option for renewal not here material.The contract was signed by the plaintiff and on behalf of the city by the then mayor and one Charles Reynolds, 'Supt.'It recited that it was made by the city 'acting in making this contract through the Infirmary Department,' and in its preamble there were further recitals that 'under the rules and regulations, the right to the collection of such garbage in the City of Peabody is granted in the said Infirmary Department of the City of Peabody,' and that 'the Superintendent of the said Infirmary Department deems it advisable to relinquish the right of collecting garbage and transfer the same to said Frank Dos Santos.'Both parties satisfactorily carried out their obligations until April 16, 1948, when a succeeding mayor notified the plaintiff in writing that the contract was illegal because of nonconformity with provisions of law relating to contracts with a city.He ordered the plaintiff to cease further collections.

The action was tried to a judge without a jury who found for the plaintiff.He denied certain requests of the plaintiff on damages and denied all of the defendant's requests.The action is here upon exceptions of both parties.

There was evidence that, at the time the contract was executed, the city maintained a piggery in connection with the operation of the infirmary of which Reynolds was superintendent.He then also had charge of collecting all garbage in the city, and after the contract was executed he continued to collect garbage in those wards not included in the contract.

There is no dispute as to the power of a city to make contracts for the disposal of garbage.G.L.(Ter.Ed.)c. 40, § 4, as amended.The word town includes a city.Chapter 40, § 1.The issue here is whether or not such power was legally exercised.The charter of the city, Spec.St.1916, c. 300, § 34, reads in part, 'All contracts made by any department, board or commission in which the amount involved is two hundred dollars or more shall be in writing, and no such contract shall be deemed to have been made or executed until the approval of the mayor and of the department or board making the contract is affixed thereto'.(Emphasis supplied.)The city asserts that this contract was illegal because of noncompliance with this charter requirement.

It has been held that 'One dealing with a city or town cannot recover if statutory requirements such as are contained in the defendant's charter have not been observed.* * * And, at least where the question is seasonably raised, the burden of proving compliance must rest upon the plaintiff as with other essential elements of his case.'Continental Construction Co. v. City of Lawrence, 297 Mass. 513, 516, 9 N.E.2d 550, 552, 111 A.L.R. 699;Cerwonka v. Town of Saugus, 316 Mass. 152, 154, 55 N.E.2d 1;Anchor Steel Co. v. Town of Granville, 318 Mass. 688, 691, 63 N.E.2d 564.And more particularly 'A municipality cannot be bound by contract by those purporting to act for it without something to show that the execution of the contract was duly authorized.'Wood v. Inhabitants of Concord, 268 Mass. 185, 189, 167 N.E. 311, 312.It is true that there was evidence that Reynolds was superintendent of the infirmary and managed its affairs, which included by inference the piggery, and that he also had charge of the collection of all the garbage in the city, but there was no evidence, by way of an ordinance or otherwise, defining his powers and duties.The charter of the city is silent in this respect.We cannot take...