Richard D. Kimball Co. v. City of Medford

• Decision Date: 28 April 1960
• Citation: 166 N.E.2d 708,340 Mass. 727
• Parties: RICHARD D. KIMBALL CO. v. CITY OF MEDFORD. Carroll H. TIFFANY v. CITY OF MEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 708

166 N.E.2d 708

340 Mass. 727

RICHARD D. KIMBALL CO. v. CITY OF MEDFORD.

Carroll H. TIFFANY v. CITY OF MEDFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 11, 1960.

Decided April 28, 1960.

Richard W. Bishop, Medford, for plaintiffs.

Mark E. Gallagher, Jr., City Sol., Boston (Daniel F. Riley, Asst. City Sol., Medford, with him), for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

These are two actions of contract, which were heard together on agreed facts. In one, the plaintiff Tiffany, an architect, seeks to recover for services rendered to the school committee (committee) of the city of Medford (city); in the other, the plaintiff Richard D. Kimball Co. (Kimball) seeks to recover for engineering services rendered to the committee.

The city has one of the standard forms of charter (Plan E) contained in G.L. c. 43. See §§ 1-45, 93. In November, 1954, the committee voted to add $3,000 to its 1955 budget to engage a consulting architect 'for the purpose of drawing up specifications, providing plans and making recommendations * * * on major repairs and renovations to existing school property.' This amount was appropriated and Tiffany was selected by the committee as its consultant. By a letter from the superintendent of schools dated May 10, 1955, Tiffany was notified that he had been 'appointed consultant architect.'

In June, 1955, the committee voted that Tiffany be authorized 'to secure professional plumbing and electrical advice in connection with the repairs to the Lincoln Elementary School and that $1,000 be made available for this purpose from the account 'maintenance of school plant." By a letter from the superintendent, Tiffany was notified of this vote and he hired Kimball to assist him. In doing so, he furnished Kimball with a copy of the superintendent's letter which contained a copy of the committee's vote.

Tiffany performed services 'on the Lincoln School project,' and on November 21, 1955, he submitted a bill for $1,500 covering a period from May to November, no part of which has ever been paid.

Kimball inspected the Lincoln School and 'drafted plans and specifications for the * * * electrical and plumbing work.' This work was performed at Tiffany's request. Kimball submitted a bill to the committee for $1,000 which has never been paid.

Other than the above mentioned letters there was no contract 'in writing' between either Tiffany or Kimball and the city. And none of these documents bore the written approval of the city manager. See G.L. c. 43, § 29.

The judge ordered judgment for Tiffany in the sum of $1,500, and judgment for Kimball in the sum of $1,000. To these orders the city excepted. The city also excepted to the denial of certain of its requests for rulings, but these need not concern us. Where, as here, cases have been submitted on agreed facts amounting to a case stated, requests have no standing; it is the duty of the judge to order the correct judgment on the agreed facts. Howland v. Stowe, 290 Mass. 142, 146, 194 N.E. 888; Commonwealth v. Alleged Gaming Apparatus & Implements & Money, 335 Mass. 223, 225, 139 N.E.2d 715.

Despite the terms of the committee's vote which authorized the services of an architect in connection with 'major repairs and renovations to existing school property,' we assume in the plaintiffs' favor that the services for which recovery is sought related to repairs, as distinct from alterations, on school property. ¹ General Laws c. 43, § 33, which is part of the city's sharter (see G.L. c. 43, § 45), provides that 'Except as otherwise provided in this chapter * * * the school committee, in addition to the powers and duties conferred and imposed by law on school committees, * * * may make all repairs, the expenditures for which are made from the regular appropriation for the school department, [and] shall have control of all school buildings and grounds connected therewith.' Another provision of the city's charter (G.L. c. 43, § 29) reads, 'All contracts made by any department, board or commission where the amount involved is one thousand dollars or more shall be in writing, and no such contract shall be deemed to have been made or executed until the approval of the * * * city manager under Plan * * * E, and also of the officer or the head of the department or of the chairman of the board * * * making the contract is affixed thereto. * * *'

It is familiar law that one dealing with a city or town cannot recover if statutory requirements such as are contained in the defendant's charter have not been observed, and the burden of proving compliance with such requirements rests upon the plaintiff. Continental Constr. Co. v. Lawrence, 297 Mass. 513, 516, 9 N.E.2d 550, 111 A.L.R. 699; Dos Santos v. Peabody, 327 Mass. 519, 520-521, 99 N.E.2d 852. Admittedly the requirements of § 29 were not satisfied. The question, then, is whether the powers conferred on the school committee by § 33 are subject to the limitations contained in § 29. In a long line of decisions (of which only a few need be cited) this court has recognized and upheld the supremacy of school committees in the field of education and matters closely related thereto. Leonard v. School Comm. of Springfield, 241 Mass. 325, 135 N.E. 459; Ring v. Woburn, 311 Mass. 679, 43 N.E.2d 8; Hayes v. Brockton, 313 Mass. 641, 48 N.E.2d 683; School Comm. of Salem v. Gavin, 333 Mass. 632, 132 N.E.2d 396. And where there have been departures from the historic independence of school committees, we have required that they be 'expressed in clear language and not left to doubtful implication.' Davis v. School Comm. of Somerville, 307 Mass. 354, 363, 30 N.E.2d 401, 407.

On its face § 29 applies to the city's school committee acting under § 33, for a school committee in a city having one of the standard forms of charter set forth in c. 43 is a 'department' or a 'board' within the meaning of § 29. Eastern Mass. St. Ry. v. Mayor of Fall River, 308 Mass. 232, 233, 31 N.E.2d 543. We must, therefore, determine whether the authority conferred on school committees under § 33 to 'make all repairs' is so necessary to the maintenance of the time honored independence of school committees that a legislative intent to subject that section to § 29 was unlikely. Although the question is not free from doubt, we are of opinion that the authority conferred on the school committee to make repairs is subject to the limitations of § 29. In Eastern...