Lumarose Equipment Corp. v. City of Springfield

• Court: Appeals Court of Massachusetts
• Writing for the Court: GRANT
• Citation: 446 N.E.2d 1087,15 Mass.App.Ct. 517
• Parties: LUMAROSE EQUIPMENT CORPORATION v. CITY OF SPRINGFIELD.
• Decision Date: 28 March 1983

Page 1087

446 N.E.2d 1087 15 Mass.App.Ct. 517 LUMAROSE EQUIPMENT CORPORATION
v.
CITY OF SPRINGFIELD. Appeals Court of Massachusetts,
Hampden. Argued Feb. 10, 1983.
Decided March 28, 1983.

Page 1088

Constance M. Sweeney, City Sol., for defendant.

Richard D. Gelinas, Springfield, for plaintiff.

Before GRANT, CUTTER and KASS, JJ.

GRANT, Justice.

This action in the Superior Court arises out of the city's use in its sanitary landfill during the period September 15, 1971, through March 31, 1977, of certain items of heavy equipment which were owned by the plaintiff and suited to the spreading and compaction of refuse. By its complaint the plaintiff sought damages arising out of the city's alleged failures to maintain the equipment in satisfactory condition, as well as amounts claimed to be due for [15 Mass.App.Ct. 518] the use of the equipment. By its counterclaim the city sought (among other things) recovery of various amounts claimed to have been paid to the plaintiff in violation of G.L. c. 43, § 29, as most recently amended by St.1973, c. 191. ¹ The case was referred to a master (facts final), whose subsidiary findings were adopted by a judge who rejected virtually all the master's ultimate findings and entered an amended judgment adverse to both parties. The city has appealed, but the plaintiff has not.

1. During the period September 15, 1971, through March 31, 1977, there were four separate contracts in writing between the parties concerning the use of the plaintiff's equipment which were signed by the mayor of the city as well as by its purchasing agent (G.L. c. 41, § 103, as amended by St.1967, c. 79, § 2). ² Those contracts covered the intervals from September 16, 1971,

Page 1089

through September 15, 1972, from October 15, 1972, through April 14, 1973, [15 Mass.App.Ct. 519] from October 15, 1973, through September 14, 1974, and from January 1, 1975, through December 31, 1975. Each contract contained a provision which allowed the city to extend the contract for a further interval of equal duration. ³ During the intervals in the aforementioned period which were not covered by any of the four contracts the parties operated either without any pretense of a written contract or under letters to the plaintiff which were signed by the purchasing agent (or the assistant purchasing agent) by which he purported to exercise the city's right to extend the life of the immediately preceding contract. None of those letters was signed by or otherwise bore the written approval of the mayor. (He seems to have been unaware of at least one of the purported extensions.) The city paid the plaintiff more than $2,000 for the use of the equipment during each of those intervals.

The judge ruled that the extensions of the lives of the contracts, having been provided for in the writings which had been signed by the mayor, did not fall within the ambit of G.L. c. 43, § 29. We find error in this respect.

The cases decided under § 29 and its Boston counterpart (see note 1 hereof) are explicit that those statutes are ones of broad general application (Adalian Bros. v. Boston, 323 Mass. 629, 631, 84 N.E.2d 35 [1949] ) and that the requirement of mayoral approval is not something which can be sloughed off as a [15 Mass.App.Ct. 520] mere ministerial act. Singarella v. Boston, 342 Mass. 385, 388, 173 N.E.2d 290 (1961). Urban Transp., Inc. v. Mayor of Boston, 373 Mass. 693, 697, 369 N.E.2d 1135 (1977). It has been stated repeatedly that the purposes of a statute such as § 29 are to unify control over a city's commercial transactions, prevent waste, and bring the mayor's best independent judgment to bear on the advisability of his city's entering into all the contracts which fall within the ambit of the statute and are proposed by all the city's various departments, boards and commissions. Eastern Mass. St. Ry. v. Mayor of Fall River, 308 Mass. 232, 235, 238, 31 N.E.2d 543 (1941). Singarella v. Boston, 342 Mass. at 388-389, 173 N.E.2d 290. Urban Transp., Inc. v. Mayor of Boston, 373 Mass. at 697, 369 N.E.2d 1135. Boston Gas Co. v. Boston, 13 Mass.App. 408, 415, 433 N.E.2d 483 (1982).

Although a purchasing agent may be able to curb or prevent waste in the actual purchasing process, he is in no position to curb or prevent the type of waste which flows from purchases which should never be made or to achieve any of the other purposes of the statute. It must be conceded that an option in a city to extend the life of a contract may be a useful device in controlling the effects of inflation, but the particular vendor's past performance, the availability of other qualified vendors and other factors may be such that it would be contrary to a city's best interests to extend or renew a contract on the same or any other terms. We think the question whether the extension or renewal of a contract such as those in this case would be in the best interests of a city calls for an exercise of judgment which the Legislature committed to the mayor, not to a purchasing agent. When all is said and done, it cannot be denied that the practical effect on a city of prolonging the term of a contract will be the same, whether the city exercises an existing option to prolong the term or enters into an express written alteration of the term, a course which would clearly require the written approval of the mayor under G.L. c. 43, § 29 (see note 1, supra ). Potter & McArthur, Inc. v. Boston, 15 Mass.App. 454, 458-459, 446 N.E.2d 718 (1983).

Page 1090

Accordingly, we conclude that the purchasing agent's actions in purporting to extend the lives of the four contracts [15 Mass.App.Ct. 521] in question without the written approval of the mayor left the city in the position that "no ... contract ... [was] made or...