McCormick v. City of Boston
| Decision Date | 08 September 1876 |
| Citation | 120 Mass. 499 |
| Parties | John McCormick v. City of Boston |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suffolk. Contract for labor done in making repairs upon a highway. Trial in the Superior Court, before Wilkinson, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions, the substance of which appears in the opinion.
Exceptions sustained.
E. F Hodges & J. W. Keith, for the plaintiff.
C. F Kittredge, for the defendant.
OPINION
The work for which the plaintiff claims pay was done in making ordinary repairs reasonably required upon Centre Street, in that part of the city of Boston formerly West Roxbury, which was annexed under the St. of 1873, c. 314. The only question is whether there was evidence to justify the jury in finding that the work of repairing the road was done by the plaintiff under a contract of employment made with agents of the town, by which West Roxbury, before its annexation became responsible to him for it. If so, then the plaintiff is entitled to recover, and his right is not affected by the fact that the officers of the town, some or all, may have acted from improper motives. Bay State Brick Co. v Foster, 115 Mass. 431.
It is objected that in the year 1873, when this work was done, no assignment in writing of highway districts had been made by the selectmen to the highway surveyors, as required by Gen Sts. c. 44, § 6. But, in the view we take, this objection becomes immaterial, because, where no highway districts are assigned the surveyors may act together, or by the voice of the major part of the whole body, so as to bind the town effectually in the discharge of its public duty in this respect. Callender v. Marsh, 1 Pick. 418, 426. For the year 1873, the five persons named were chosen selectmen and highway surveyors, and duly entered upon the discharge of their respective duties with no question, now made, that the offices are incompatible. Benjamin v. Wheeler, 15 Gray 486. Bay State Brick Co. v. Foster, ubi supra. Acting as a board of highway surveyors, they had authority, as public officers and agents of the town, to employ labor in the repair of the highways. There was evidence that the plaintiff was so employed by two members of the board; that he did this work faithfully; that the three other members recognized it as work done for the town by directing its discontinuance as such; and that the...
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