McGovern v. Inhabitants of Town of Southbridge

• Decision Date: 09 October 1928
• Citation: 264 Mass. 578,163 N.E. 175
• Parties: McGOVERN v. INHABITANTS OF TOWN OF SOUTHBRIDGE
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 578

163 N.E. 175

McGOVERN

v.INHABITANTS OF TOWN OF SOUTHBRIDGE

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 9, 1928.

Report from Superior Court, Worcester County; F. B. Greenhalge, Judge.

Action by Thomas F. McGovern against the Inhabitants of the Town of Southbridge. On report after directed verdict for defendant. Judgment for defendant.

W. W. Buckley, of Southbridge, for plaintiff.

W. C. Mellish, of Worcester, and A. C. St. Onge, of Southbridge, for defendant.

PIERCE, J.

This is an action of contract in which the town engineer of Southbridge seeks to recover $2,000 for preparing plans and specifications for certain filter beds in the defendant town, the same being in addition to a salary paid him for services as town engineer. At the trial a verdict was directed for the defendant, and it was agreed by the parties that the case should be reported to this court on the stipulation that ‘if the directing of the verdict was right, judgment [was] to be entered for the defendant. If, however, on all the evidence, the case should have been submitted to the jury, judgment [was] to be entered for the plaintiff in the sum of $2,000.00, plus interest from the date of the writ.’

‘The pleadings, except the writ, which was in the usual form, are made a part * * * [of the report] as also the votes of the town relating to the establishment of the engineering department, and the construction and repair of the filter beds which were introduced in the evidence and which were all the votes of the town pertinent to this matter.’ All the material evidence introduced at the trial is contained in the report.

At the adjourned town meeting held March 11, 1924, the town of Southbridge under an article:

‘To see if the town will vote to establish an engineering department, raise and appropriate money therefor or act anything thereon. * * * Voted, that the board of selectmen be and hereby is authorized and empowered to establish an engineering department to consist of a civil engineer or mechanical engineer and a clerk. This department shall be responsible to the board of selectmen, and shall retain in the possession of the town all maps, drawings and records pertaining to streets, sidewalks, sewer locations and pipes. The engineer shall prepare specifications for grades, bounds and materials, depths of all streets, sidewalks, sewers, and other constructions hereafter built by or charged to the town. He shall recommend to the board of selectmen and his recommendations when approved shall be binding upon all departments concerned. He shall inspect all work done under his specifications and be responsible for the fulfillment of all his requirements. He shall prepare maps or sketches of all town property. The selectmen shall select an engineer whose qualifications shall be those of ‘grade E engineers and chief engineers,’ as provided by amendment to the Revised Civil Service Rules, section 6, chapter 19, of the Revised Laws of the commonwealth. And for the purpose of carrying out the above vote it is voted that the town raise and appropriate, from the tax levy of the current financial year the sum of five thousand five hundred dollars ($5,500.00), to establish and maintain said department for the ensuing year.'

At the trial the plaintiff testified:

‘That in March, 1924, he was appointed town engineer by the selectmen of the town of Southbridge at a salary of $3,000.00 per year, his appointment being the first under an article and vote establishing an engineering department for the town of Southbridge which article and vote are printed with these papers; that he was to perform all the duties required as town engineer as aforesaid but that he was not required to devote all of his time and was to continue with private work in which he was engaged in Rhode Island; that he was reappointed town engineer in 1925 at a salary of $3,000.00 per year and also was reappointed in 1926 at a salary of $3,000.00 per year; that he was paid said salary in monthly installments throughout the time of his services as town engineer the vouchers stating each month ‘on account of salary’; that in June...