Morse v. City of Boston

• Citation: 260 Mass. 255
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 29 June 1927
• Parties: FRANCIS A. MORSE & others v. CITY OF BOSTON & others.

260 Mass. 255

FRANCIS A. MORSE & others v. CITY OF BOSTON & others.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1927

January 11, 1927.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, CARROLL, WAIT, & SANDERSON, JJ.

Contract Construction, Consideration, Validity, Modification. Evidence, Extrinsic affecting writing. Boston. Municipal Corporations. Equity Jurisdiction, Suit by ten taxable inhabitants.

A contract with the city of Boston required the contractor to fill a park area on a shore front. 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 as the finished grade; and the contract provided. "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" and that "the quantity to be paid for shall be determined by measurement of the space filled . . . after the material has been levelled off and rolled." 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 settled below the level of the land as that level existed in 1922. The engineer orally ordered and purported to authorize the contractor to add more loam over areas which had been brought up to grade and had then settled, to be paid for as extras outside the specifications. In a suit under G.L.c. 40, Section

53, by ten taxable inhabitants of Boston, it was held, that (1) The words "space filled" in common acceptance could only mean making an empty place full, and, as applied to the contract read in the light of all the circumstances, meant that the contractor should be paid a sum of money which should be measured by the space filled, rolled off and levelled above the levels of 1922;

(2) There was no patent or latent ambiguity in the quoted terms of the contract, so far as they related to measurements and price to be paid for the work done, which permitted the introduction of parol evidence;

(3) The risk of loss, caused by a part, or even the whole, of the material placed by the contractor upon the 1922 levels sinking below those levels, fell upon the contractor and not upon the city of Boston;

(4) An attempted amendment of the contract to provide for payment to the contractor on a basis of the amount delivered as measured in vehicles less a deduction of ten per cent, even if supported by a good consideration, in the circumstances was void following Morse v. Boston,

253 Mass. 247; (5) Payment to the contractor for material below the levels shown on the 1922 plan was illegal as to the material furnished both before and after the execution of the amendment; but in this proceeding no decree could be made requiring a return by the contractor of sums already paid to him;

(6) The ordering by the engineer of the furnishing of further loam as an extra was a substantial change in the obligations of the contract, and was illegal and void because it created a new right under the contract for the benefit of the contractor which, in its nature, magnitude and expense, did not bear a reasonable subsidiary relation to the work originally covered by the contract;

(7) An injunction was ordered restraining the city from paying to the contractor any further sums under the contract as purported to have been amended.

BILL IN EQUITY, filed in the Supreme Judicial Court for the county of Suffolk on October 2, 1924, by thirteen taxable inhabitants of the city of Boston against that city, its mayor, the commissioners of its park department, its treasurer, its auditor, J.C. Coleman and Sons Company and the Maryland Casualty Company, seeking to have declared void certain amendments to a contract made on July 17, 1922, by the commissioners on behalf of the city with the defendant J.C. Coleman and Sons Company, and to have further payments by the city under the contract as amended enjoined and to have the defendant contractor ordered to repay to the city "all sums found to be in excess of what is legally due under the said contract unamended."

After the rescript following the decision reported in 253 Mass. 247 , overruling all demurrers to the bill, the suit was referred to a master. Material findings by the master are stated in the opinion. The suit was reserved by Pierce, J., for determination by the full court.

The case was argued at the bar in January, 1927, before Rugg, C.J., Crosby, Pierce, Wait, & Sanderson, JJ., and afterwards was submitted on briefs to all the Justices.

R.C. Curtis, (C.P. Curtis, Jr., with him,) for the plaintiffs. J.A. Sullivan, S. Silverman, Assistant Corporation Counsel, & A.T. Smith, for the defendants.

PIERCE, J. This is a suit in equity brought by ten taxpayers of the city of Boston, under G.L.c. 40, Section 53, to restrain further payments to the defendant J.C. Coleman and 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 in of this territory with what was termed "hydraulic fill," a material of a consistency of about eighty 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 purpose 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 levelled 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. . . ." Art. 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 settlement, referred to in art. 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), 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...