Mcmanus v. City of Boston
| Decision Date | 19 May 1898 |
| Citation | 171 Mass. 152,50 N.E. 607 |
| Parties | McMANUS v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.M. Morse and S. Davis, for plaintiff.
T.M Babson, for respondent.
On October 27, 1896, the school committee of the city of Boston having power, under St.1895, c. 408, § 2, with the approval of the mayor, to designate for school purposes lands which the board of street commissioners shall thereupon take by purchase or otherwise, passed an order requesting the board of street commissioners to take, by purchase or otherwise, the land which the plaintiff by this bill seeks to compel the city to take and pay for, and this order was subsequently approved by the mayor. When the order was passed, the plaintiff was not the owner of the land. The approval of the order by the mayor took place on November 5 1896, and on that day the plaintiff bought the land for $5,700, in anticipation of the action of the school committee and street commissioners, and shortly after offered it to the city for $9,500, saying that that was a fair price, and not disclosing what the land had cost him. On December 22, 1896, the board of street commissioners voted to purchase the land for the city for school purposes, of the plaintiff, for the sum of $9,500; and on the same day the plaintiff signed a written agreement under seal to convey the land to the city for that sum. The bill alleges that the plaintiff on that day agreed in writing with the board of street commissioners to sell the land to the city for the sum of $9,500; which the city, through the board, agreed to pay; and the answer alleges that on that day the plaintiff offered the land to the board of street commissioners for the sum of $9,500, by the written paper of that date, signed by him, and above mentioned. The answer denies that there was any agreement on the part of the board of street commissioners other than that contained in its vote of December 22, 1896, which was to purchase the land of the plaintiff for $9,500. The report does not state whether or not this vote was communicated to the plaintiff. It was communicated on the day of its passage to the school committee, who on January 4, 1897, passed an order that the sum of $9,500 be paid to the plaintiff for the land upon his giving to the city a deed satisfactory to its law department, and also passed another order transferring funds to enable the payment to be made. The plaintiff's deed not having been accepted, nor the price of the land paid to him, he brings this bill.
The answer alleges that $5,700 was the full value of the land, and that $9,500 was an exorbitant and excessive price for it. There has been no replication, and the report does not find directly whether the fair value of the land was $5,700 or $9,500. The bill alleges that the parties agreed, the plaintiff to sell, and the defendant, through the board of street commissioners, to pay, $9,500 for the land, and the answer denies that there was any agreement to sell and purchase as alleged. The report does not find whether or not there was in fact such an agreement, but states that the presiding justice ruled "that the vote only purported to be an authority to the proper hand to accept from the plaintiff a deed when made out, and information to the school committee, and that it did not purport to be addressed to the plaintiff, or to make an executory contract with him before the deed should be passed." The report further states that the defendant contended that the street commissioners were not its agents, and had no power to bind it by an executory contract, and that the plaintiff relied on the vote of December 22, 1896, as an acceptance of the offer contained in his covenant to sell, and as a sufficient memorandum under the statute of frauds. The report also states that the case was heard on the pleadings annexed, which were the bill and answer, and upon certain admissions of counsel. The admissions are not stated, but it is stated that "the only questions were the following," which we understand in substance to be: (1) Whether the vote was an acceptance of the offer contained in the plaintiff's covenant to sell; (2) whether the vote was a sufficient memorandum under the statute of frauds; (3) whether the vote purported to be only an authority to the proper hand to accept from the plaintiff a deed when made out, and information to the school committee; (4) whether the vote purported to be addressed to the plaintiff; (5) whether the vote did not purport to make a contract with the plaintiff before the deed should be passed; (6) whether the street commissioners were the agents of the city, and whether they had power to bind the city by an executory contract if they attempted to do so; (7) whether the facts that the plaintiff bought the land on November 5, 1896, for $5,700, in anticipation of the action of the school committee and street commissioners, and shortly after offered it to the city for $9,500, not disclosing what the land had cost him, are grounds upon which the court, in its discretion, should refuse a decree for specific performance.
The board of street commissioners was a department of the city government, clothed with the duty and the power, by virtue of the provisions of St.1895, c. 408, § 2, to take, by purchase or otherwise, at the request of the school committee,...
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