Osgood v. City of Boston

• Decision Date: 26 February 1896
• Parties: OSGOOD v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 281

43 N.E. 108

OSGOOD v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Norfolk.

February 26, 1896

COUNSEL

E.C. Bumpus, for plaintiff.

Samuel M. Child, for defendant.

OPINION

KNOWLTON J.

The only contract between the parties is that made at the time of the sale. What the auctioneer stated orally does not differ in legal effect, from the writing which was made soon afterwards. The building was sold, to be removed within 15 days from date, and a moving permit was guarantied if applied for on or before January 2, 1891. Without such a permit, the plaintiff could not remove it without tearing it down. Such a permit was applied for before January 2, 1891, but the application was not in accordance with chapter 3, § 3, of the regulations of the board of aldermen, in effect at that time which required that each application to move a building should be in writing, and accompanied by the written consent of all railroad corporations whose tracks were to be incumbered by the moving of the building. The board of aldermen passed an order authorizing the superintendent of streets to issue a permit "on the terms and conditions expressed in the ordinances of the city relating thereto." Such a permit was accordingly issued, which contained, among other provisions, one that the person to whom the permit was granted should not cross any steam or street railway tracks, except in accordance with the written directions of the corporation using the same. The plaintiff declined to accept the permit on account of this provision and did not remove the building within 15 days. The city thereupon again sold the building, and the plaintiff brings this action for damages for a breach of the contract.

Under the charter of the city, the board of aldermen are vested with authority to make regulations in regard to the occupation and use of the streets, and Pub.St. c. 113, § 27 contains a special provision in regard to regulations for the use of street railways. Various ordinances and regulations have been made at different times in regard to the streets. See Rev Ord.1890, cc. 37, 20, 18,§§ 1, 3, 21; Rev. Regulations 1890, c. 7, § 30; Id., c. 3, § 3. The authorities of the city having charge of the sale of buildings could not bind the city by a guaranty giving a permit in any other form or on other conditions than those prescribed by the city ordinances and the regulations of the board of aldermen. If the...