Shea v. Town of Milford

• Decision Date: 06 January 1888
• Citation: 14 N.E. 764,145 Mass. 528
• Parties: SHEA v. INHABITANTS OF MILFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 528

14 N.E. 764

SHEA v. INHABITANTS OF MILFORD.

Supreme Judicial Court of Massachusetts, Worcester.

January 6, 1888

COUNSEL

W.A. Gile and W.S.B. Hopkins, for plaintiff.

The committee of the town are its agents, and not a board of public officers, Deane v. Randolph, 132 Mass. 475. Their acts can be proved like any other agents' within the scope of their authority. Blanchard v Blackstone, 102 Mass. 343; Morse v. Railroad Co., 6 Gray, 450; Burgess v. Wareham, 7 Gray, 345. When a contract is signed by only one of a committee, as is usual where a written contract is made by a committee, it is competent to show that the member signing acted upon the verbal request of other members of the committee. Haven v. City of Lowell, 5 Metc. 35. But there was evidence competent to show that the town was bound, by implication of law, to accept the building with the brown stone in it. Melledge v. Iron Co., 5 Cush. 158, 175 176; Canal Bridge v. Gordon, 1 Pick. 297; Bank v. Patterson, 7 Cranch, 299; Bank v. Dandridge, 12 Wheat. 64. The plaintiff claims that there was evidence from the contract itself, and the evidence introduced, to show that Swasey was intended by the written contract wherein the "agent" of the town is referred to; and that it was a question for the jury to find, on the contract and all the evidence, whether Swasey, under his numerous powers, was not authorized to alter the plans of the building which he had made for the town to build the building by, especially after they had accepted this alteration when put into the building placed upon the land of the town. It is clear, from the contract, that the "agent" of the town had authority to alter the plans and specifications; and from the contract, and the fact that Swasey was the architect and superintendent of the building, he is the person designated by the contract as the "agent" of the town, at least so far as making alterations of the plans and specifications, which would include the matter of brownstone trimmings, or any of the other articles sued for in the five items of the plaintiff's declaration.

T.G Kent and G.T. Dewey, for defendant.

If this suit had been brought by Mead, Mason & Co., the parties contracting with the town, they could not recover. The question is, had Swasey the right, as the agent of the town to make this contract? The contract to be made by the committee must comply with the vote. The town is not responsible for any provisions in the contract not warranted by the vote. It is wholly immaterial what authority, inconsistent and incompatible with the action of the town, was conferred by the contract on Swasey or any other person; it would not bind the town. Keyes v. Westford, 17 Pick. 273. The plaintiff cannot recover of the town unless the town made a contract with him, express or implied. If the whole committee, acting together, could not bind the town to any extra expense, certainly it would be of no consequence what they decided on individually; and the ruling of the court as to the way the committee must act, to be binding, would not injure the plaintiff, and was of no consequence. But the ruling was right. Lord v. Lord, 5 El. & Bl. 404; Wade v. Dowling, 4 El. & Bl. 44; Peterson v. Ayer, 15 C.B. 724; Reed v. Inhabitants of Scituate, 5 Allen, 124; Haven v. Winnisimmet Co., 11 Allen, 386. The acceptance of the building, with the brown stone in it, by the committee, would not affect the case.

OPINION

W. ALLEN, J.

The committee were agents of the town, and not a judicial body, or a board of public officers; and the ruling of the court that the committee could act only as a body, and not by the agreement of individual members, separately obtained, cannot be sustained. Haven v. City of Lowell, 5 Metc. 35.

The defendant contends that the further ruling that there was no evidence sufficient to show agency on the part of Swasey, or action by the committee, was right, for the reasons that the committee had no authority to make, or authorize to be made, the contract under which the plaintiff claims, and that the evidence was not sufficient to prove that contract. The committee was appointed by the defendant town to build a memorial hall. Mead, Mason & Co. contracted with the committee to erect the building according to certain specifications. The plaintiff contracted with Mead, Mason & Co. to do all the stone-work according to the specifications. The plaintiff's bill of particulars contains five items for materials and labor, which he claims were not included in his contract with Mead, Mason & Co., but were furnished under a contract or contracts between him and the defendant, through the committee and Swasey, the supervising architect. The largest of these items, and the only one in reference to which any evidence was given, is $2,500 for brown-stone trimmings for the building. It is not disputed that these trimmings were put in by the plaintiff, and that they were not included in the specifications.

The first question is as to the authority of the committee to contract for work outside of the contract with Mead, Mason & Co. The memorial hall was built under authority of St.1883 c. 119, which authorized the town to borrow, for the purpose, a sum not exceeding $20,000, but put no limit upon the amount the town might expend. In November, 1883, a committee which had been appointed, in the April preceding, to consider location, plans, estimates, and to make recommendations, reported, to quote the words of the exceptions, "recommending the location on which the hall was afterwards built, and the plan and specifications of Fred. R. Swasey, architect; and reported that the price should not exceed $20,000." We would say here that we do not understand by this that the committee recommended that the town should vote that the cost of the building should not exceed $20,000, but that they expressed the opinion that it would not; meaning the same as if they had said "ought not" or "would not." In the absence of the language of the report, and upon the mere statement of its substance, the plaintiff ought not to be bound by a meaning that is not clear; and the fact that this is not among the things recommended in the report, and the action of the town at the same and at a subsequent meeting, indicate that the committee intended, and was understood to express their opinion, that it could be built for that sum. The report was accepted, and placed on file, and the committee instructed to receive proposals for a building. At a town meeting in March, 1884, the following votes were passed: "Voted, that the report and plans of the memorial hall committee be adopted. Amended: also location adopted. Also that the same committee locate and build the same. Voted, that for the purpose of building a memorial hall we raise, by taxation, the sum of $20,000; and that the town borrow the sum of $20,000, payable, in equal installments of $5,000, in one, two, three, and four years." The specifications reported by the committee in November, 1883, so far as material, were as follows: "Specifications of material and labor required in the erection and entire completion of a memorial building for the town of Milford. Said building to be erected on the corner of Spruce and School streets, in said Milford, and to be built in accordance with drawings and these specifications furnished by Fred. Swasey, architect, of said Milford, and under his superintendence. Conditions: The contract will include all labor and material necessary to carry into entire completion all the work of every name and nature shown by drawings, except such parts as the specifications expressly designate to be furnished by the town. *** No charge of any kind shall be made for extra work, except said work be ordered in writing by said architect; all orders for extra work, or claims therefor,...