Sampson v. City of Boston

• Decision Date: 16 May 1894
• Citation: 161 Mass. 288,37 N.E. 177
• Parties: SAMPSON et al. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 288

37 N.E. 177

SAMPSON et al. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1894

Plaintiffs' declaration is as follows:

"And now come the plaintiffs, and say that by an order of the city council of the city of Boston, approved March 4, 1885 a copy of which is hereto annexed, and marked 'Exhibit A,' a board of three commissioners was appointed by the mayor of said city for the purposes of said order. That by chapter 377 of the acts and resolves passed by the general court of Massachusetts in the year 1885, which was amended by chapter 122 of such acts and resolves, passed in 1886 said commissioners were authorized to take such land as might, in their judgment, subject to the approval of the mayor of the city, be requisite for the erection of a courthouse for the use of the courts of the commonwealth within and for the county of Suffolk; and in and by said specified acts it was further made the duty of said city of Boston, acting by and through said commissioners, to erect within a reasonable time upon land so taken or purchased by them a suitable courthouse as aforesaid, but said commissioners were by the terms of said acts not to commence work thereon until, among other things, proposals for doing the work should be received from responsible parties, and until contracts should be entered into with satisfactory guarantees for their performance. The plaintiffs further say that, pursuant to said acts so specified, said commissioners took or purchased lands for the purposes aforesaid, and advertised for proposals for building such courthouse; such proposals to be for doing different parts of the work separately and in different sections. That the plaintiffs made proposals to said commissioners for doing the stone and brick mason work, at different times, applying to different and separate sections of the work, which proposals were accepted by said commissioners, and contracts for building were entered into in writing between said commissioners and the plaintiffs accordingly, and the plaintiffs have executed said contracts in part, and are still engaged in the performance of the same. That all such proposals were advertised for by said commissioners, and were submitted by them to competition bidding, and contracts were made by said commissioners with successful bidders accordingly. That in the progress of the work said commissioners found it necessary or advisable to obtain proposals and make contracts as aforesaid in different parts and on different sections of the building at different times, in consequence whereof it could not be known in advance what party or parties would have any subsequent or future part of the work to do beyond such proposals and such contracts as might be made and entered into from time to time. That on the ----- day of -----, 1887, the plaintiffs entered into a contract in writing with said commissioners to furnish the materials and to construct the basement and first story of said courthouse so far as the same was to consist of stone and brick work. That on the 8th day of October, 1887, they entered into another contract in writing with said commissioners to furnish the materials and to construct the northerly section of said courthouse. That on the 3d day of April, 1888, they entered into another contract in writing with said commissioners to furnish the materials and to construct the central section of said courthouse. That when they entered upon said work they had a complete and sufficient outfit of tools, machinery, and appliances for the performance of the work contracted for including an ample supply of suitable derricks. That under said contracts all the work ofconstruction was to be done under the direction and control and subject to the approval of said commissioners and a supervising architect appointed by them. That to facilitate the general work of construction over the whole building, and to enable the contractors who might from time to time be engaged in such construction on different parts of the building to work together and to carry the work along with uniformity, and to make substantially equal progress in raising the building in all its parts, said commissioners and said architect proposed to construct a system of derricks, known as the 'Norcross derrick,' to be used over the whole structure by all the contractors for different parts of the work, such derricks to be constructed at the expense of the city of Boston, and to be the property of the city of Boston, unless and until they should be purchased by such contractors; and such proposal was made to the plaintiffs, contractors, as aforesaid, and they were requested by said commissioners and architect to abandon their own derricks aforesaid, and to adopt and use in common with other contractors a system of Norcross derricks so to be constructed; and thereupon it was agreed between the plaintiffs and said city of Boston, the latter acting through said commissioners and architect, that the use of the plaintiffs' derricks should be abandoned, and that said system of Norcross derricks should be constructed and set up for use by said city, and that the plaintiffs should use the same in the performance of their contracts, instead of their own. That such change was made, and such agreement entered into, wholly for the benefit of said city, and not for the convenience or advantage of the plaintiffs; and in consideration thereof it was understood and agreed between the plaintiffs and said commissioners and architect that said Norcross derricks should be constructed under the direction of said commissioners and architect, that the same should be set up for use by them, and that said city should be responsible for their proper construction, and for setting them up properly and securely, so that they could be used by the plaintiffs with safety to themselves and their employes, and without detriment to their work and

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