McGovern v. City of Boston

• Citation: 229 Mass. 394,118 N.E. 667
• Parties: McGOVERN et al. v. CITY OF BOSTON.
• Decision Date: 28 February 1918
• Court: United States State Supreme Judicial Court of Massachusetts

229 Mass. 394

118 N.E. 667

McGOVERN et al.

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1918.

Report from Supreme Judicial Court, Suffolk County.

Suit by Patrick McGovern and another against the City of Boston. Demurrer to the bill was sustained by a single justice of the Supreme Judicial Court, and case reported to the full court. Decree dismissing the bill, unless an amendment shall be allowed.

John F. Cronan and Clarence J. Smerdon, both of Boston, for complainants.

Geo. A. Flynn, of Boston, for respondent.

CROSBY, J.

This is a bill in equity brought to rescind a completed contract made by the plaintiffs with the Boston Transit Commission for the construction of section E of the Dorchester tunnel, so-called, and to recover the value of the work done on a quantum meruit. The defendant's demurrer to the bill was sustained by a single justice, who reported the case to this court.

The Boston Transit Commission was created, and its duties were defined by St. 1894, c. 548, and acts in addition and amendment thereof. The contract in question was authorize by St. 1911, c. 741, and was dated December 16, 1914. Thereafter the plaintiffs completed the contract according to its terms.

The plaintiffs allege that after the completion of the work, they learned that the boring plans submitted by the Transit Commission did not show the true character of the material which it would be necessary to excavate and remove; that some of the borings indicated ledge as found in certain locations; that such borings were not shown on the plans but were willfully concealed by the commission from the plaintiffs; that some of the borings were made with improper and insufficient tools; that the chief engineer of the commission knew or ought to have known that ledge was encountered by the borings; and that the omission from the boring plans of borings showing ledge was for the purpose of deceiving bidders as to the nature of the materials to be removed and to secure at a low cost the performance of the work. And they contend that by reason of such concealment on the part of the commission, they were put to an additional expense of approximately $240,000 in the performance of the contract, which they seek to recover.

In answer to these allegations, the defendant contends, among other things, that the statement on the plans relating to the character of the materials which had to be removed in the performance of the work were expressions of opinion and were not representations of fact; and that, if the plaintiffs were not willing to accept and be bound by the opinions of engineers of the commission, it was their duty to request an opportunity to examine the boring samples upon which the opinions so expressed were based or to make their own borings. Winston v. Pittsfield, 221 Mass. 356, 108 N. E. 1038.

The statute under which the contract was authorized (St. 1911, c. 741) provides in section 17 as follows:

‘The commission may make contracts in the name of the city for the work herein authorized, but all contracts involving two thousand dollars or more in amount shall be in writing and signed by a majority of the commission; and no such contract shall be altered except by an instrument in writing, signed by the contractor and a majority of the commission, and also by the sureties, if any, on the bond given by the contractor for the completion of the original contract. No such contract, and no alteration of any such contract, shall be valid or binding on the city unless executed in the manner aforesaid.’

The provision in the statute that all contracts involving two thousand dollars or more in amount shall be in writing and signed by a majority of the commission, manifestly was intended by the Legislature to protect the city of Boston from the uncertainty and danger of oral contracts involving large amounts, and from hasty and ill-advised action. A contract in writing, expressed in clear and certain language, free from ambiguity, would relieve the city from the dangers attendant upon contracts, the scope and effect of which might depend wholly upon verbal talk, subject to different interpretations in view of the language used by the parties. Statutes, city charters and ordinances relating to municipalities, containing similar provisions, have often been upheld as reasonable and proper safeguards of binding force upon municipalities and their officers and agents, as well as upon those who contract with them. U. S. Drainage & Irrigation Co. v. Medford, 225 Mass. 467, 472, 114 N. E. 734;Fiske v. Worcester, 219 Mass. 428, 106 N. E. 1025;McLean v. Holyoke, 216 Mass. 62, 102 N. E. 929;Sullivan v. Mandell, 212 Mass. 174, 98 N. E. 690;Commercial Wharf Corp. v. Boston, 208 Mass. 482, 94 N. E. 805. The plaintiffs are chargeable with knowledge of the provisions of section 17 and are bound by its terms. Fiske v. Worcester, supra.

The members of the Boston Transit commission, in making the contract in question under section 17 above quoted, were not servants or agents of the city but acted as...