Morse v. City of Boston

• Decision Date: 29 June 1927
• Citation: 260 Mass. 255,157 N.E. 523
• Parties: MORSE et al. v. CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 255

157 N.E. 523

MORSE et al.

v.CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1927.

Case Reserved from Supreme Judicial Court, Suffolk County.

Suit in equity by Francis A. Morse and others against the City of Boston and others. On reservation. Decree to be entered in conformity with opinion.R. C. Curtis and C. P. Curtis, Jr., both of Boston, for plaintiffs.

A. T. Smith, of Boston, for defendant Maryland Casualty Co.

J. A. Sullivan and S. Silverman, Asst. Corporation Counsel, both of Boston, for other defendants.

PIERCE, J.

This is a suit in equity brought by ten taxpayers of the city of Boston, under G. L. c. 40, § 53, to restrain further payments to the defendant J. C. Coleman & Sons Company pursuant to its contract with the city, and to compel that company to repay to the city all sums found to have been paid in excess of what is lawfully due under said contract. The contract in question was executed July 17, 1922, and approved by the mayor July 21, 1922. It was for ‘completing the Columbus Park improvement, South Boston, according to the plans of the park department, dated June 24, 1922, entitled ‘Columbus Park Improvement, South Boston,’ and signed John J. Murphy, Engineer,' by filling in the park area, covering about seventy-five acres, up to finished grades as indicated on the contract plans.

In 1916, in order to render the park healthful and desirable as a recreation resort, the city commenced to improve a section of the shore front by eliminating offensive and unsanitary conditions then existing, due to the exposure of the mud flats and sewage at low tide. This project, referred to as the ‘Strandway improvement,’ had been authorized by St. 1914, c. 240. A contract was entered into with the New York State Dredging Company, the general terms of which called for an extension of the existing shore line and the filling on of this territory with what was termed ‘hydraulic fill,’ a material of the consistency of about 80 per cent. liquid and twenty per cent. solid. The dredging company ceased work in 1918 because of the requisition of its hydraulic dredge by the United States government. Work was not resumed until 1922, when the contract with the Coleman company was made. Plans, showing what purported to be the levels of the locus at various points in 1922, were made a part of the contract, which provided for placing upon the land additional filling, thereby raising the entire grade above the levels as they were in 1922, to a grade designated on the contract plans of June 24, 1922, as the finished grade. The city's estimate of the cubic yards of earth, gravel, sand and loam required to complete the work was set forth in the contract, and it was also recited therein that this estimate was made for the burpose of comparing proposals and was not guaranteed to be accurate.

The contract with the dredging company contained the following reference to the filling:

‘Measurements and estimates of the commissioner will be calculated from the contours of the present surface and the figures of the elevations of the proposed finished surface; and the contractor will be paid only for the cubical contents determined from these figures. Any material required on account of settlement of the filling or of the underlying material is to be put in place by the contractor at his own expense.’

The contract with the Coleman company, in this respect, provided in item 2(g) of section 4 of the specifications that-

‘The quantity to be paid for shall be determined by measurement of the space filled * * * after the material has been leveled off and rolled.’

Items 3(d) and 4(d) of section 4 contained similar provisions. An amendment made on August 8, 1924, provided that the quantity of filling was to be determined by the engineer ‘as measured in the vehicles * * * less a deduction of 10%, and less the amount of excavated material used for filling. * * *’ Article 8 of the contract provided for monthly payments to the contractor based on ‘the value of materials owned and placed in permanent position on the work by the contractor,’ with certain deductions in the final setlement, referred to in article 9, which settlement was to be made sixty-one days after the work was completed.

It is the contention of the plaintiffs that, under the terms of the original contract with the Coleman company, the latter was to be paid for the material above the levels of 1922 as measured in place that so measured the contractor has been overpaid; that no measurements of the amount in place have been made; and that from the beginning payments have been in accordance with the amount delivered. The plaintiffs further contend that an amendment of the contract made August 8, 1924, constituted a material change; that it was contrary to law and was without consideration. A demurrer of the defendants having been overruled (253 Mass. 247, 148 N. E. 813), the case was referred to a master, who has made a report, and the case was reserved for the determination of the full court upon the pleadings, master's report and exceptions thereto.

Item 4(a) of section 4 of the contract provided in part that--

‘Loam shall be six (6) inches in depth on playground and eighteen (18) inches in depth for planting areas unless otherwise directed by the engineer.’

The Coleman company began work under the contract and proceeded to deliver fill and loam upon the land. The city maintained in daily attendance an inspector with assistants whose duty it was to keep a correct record of the number of cubic yards of filling delivered. The number contained in each motor truck was calculated and a record thereof kept. The chief inspector for the city estimated that five yards was a fair general average per truck, basing this estimate upon the known dimensions of each and the point to which it was filled when he examined it. The master states that he could not find that the five-yard estimate was unreasonable. He found that the figures so kept by the city inspector showed that the contractor had delivered 300,476 cubic yards of fill up to May, 1924, and 21,126.8 cubic yards since that date; that 91,028 cubic yards of loam were delivered up to May, 1924, and 504 cubic yards since that time. The city has paid the Coleman company $551,547.38, and is withholding, under the terms of the contract, $29,028.82.

It appears that, owing to the soft and unstable character of the substance upon which the fill and loam were to be placed, a large portion of such fill and loam had settled below the level of the land as that level existed in 1922, when the contract was entered into. Messrs. Johnson and Watson, a firm of engineers employed originally by the park commissionersto determine the amount of material that had been delivered, subsequently were called by the Coleman company to testify to such deliveries. They estimated that there were 191,038 cubic yards of fill above the levels of 1922, from which the master found that 5,327 cubic yards excavated and used as fill should be deducted, as only 988 cubic yards of the total of 6,315 had been deducted by them. They found that 121,852 cubic yards of fill had disappeared beneath the original levels of 1922, which, added to the number of cubic yards found by them to be above these levels, made a total of 307,563 yards delivered by the Coleman company, exclusive of loam. As to the loam, they estimated that there were in all 54,745 cubic yards upon the area, of which 31,150 were below the levels of 1922. The city has allowed the Coleman company for 91,532 cubic yards from which ten per cent. must be deducted for measurement in vehicles, leaving a total of 82,378.8 cubic yards of loam delivered, which is over 27,000 cubic yards more than it is entitled to, according to the figures of Johnson and Watson.

The master attributed the difference in the estimates to the failure of these engineers to take into account a mixed soil which contained loam existing below the 1922 levels or to the fact that the loam was subject to erosion. He found that their estimate of the amount of material below the 1922 levels was as nearly accurate as it was possible to determine, and accepted their figure of 121,852 cubic yards as that amount. There was no other evidence of the amount of material delivered which had settled below those levels. Although the testimony of several engineers before the master apparently was conflicting, it appears that nearly all the totals estimated by them were in the vicinity of 300,000 cubic yards of material delivered, if Johnson and Watson's estimate of material below the 1922 levels is added to their estimate above those levels. The master found that the plaintiffs failed to show that the Coleman company had not delivered the number of cubic yards of fill and loam allowed by the city. He found that, by deducting from the total number of cubic yards of fill, as estimated by the city engineer, the number estimated by Johnson and Watson to be below the 1922 levels, 167,590.25 cubic yards were in place above the 1922 levels. He further found that it was impossible to determine, with any degree of accuracy, the amount of loam...