Storrs v. City of Manchester

• Citation: 184 A. 862
• Parties: STORRS v. CITY OF MANCHESTER.
• Decision Date: 07 May 1936
• Court: New Hampshire Supreme Court

184 A. 862

STORRS

v. CITY OF MANCHESTER.

Supreme Court of New Hampshire. Hillsborough.

May 7, 1936.

Transferred from Superior Court, Hillsborough County; Scammon, Judge.

Assumpsit by John W. Storrs against the City of Manchester. Verdict for plaintiff, and the case transferred on plaintiff's exception.

Exception overruled.

Assumpsit, for services and expenses. Trial by jury and verdict for plaintiff. He excepted to the court's action in setting aside a part of the verdict and ordering judgment for the balance." The opinion states the material facts.

Robert W. Upton and Laurence I. Duncan, both of Concord, for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell and Allie. J. Connor, all of Manchester (L. E. Wyman, of Manchester, orally), for defendant.

ALLEN, Chief Justice.

The city's director of public works accepted a proposal of the plaintiff to engage him on a commission basis as consulting engineer for the construction of two bridges. After the plaintiff commenced his work, the mayor notified him that the director had no authority to contract for the service in the city's behalf in such manner, and advised him that any work he did in the matter would be at his own risk. The plaintiff then interviewed the director, who requested him to proceed with the work. The plaintiff's testimony is full of conflict upon the issue whether the request was in confirmation of the contract or constituted a cancellation of it with an engagement on new terms.

The jury were instructed that, if the plaintiff's services were rendered pursuant to the original contract, he could not recover, but, if he was re-engaged for services to be rendered in assistance to the director and under the latter's orders, and the city accepted them, he was entitled to the value of the benefit the city received from them. It is the part of the verdict returned under this instruction that was set aside.

The instruction barring recovery based upon the original contract was correct. By the statute (Laws 1917, c. 350, § 4), a contract for "the performance of any work" required the mayor's approval, as one condition. Wellman v. Reilly, 81 N.H. 389, 127 A. 875.

The effect of the instruction was also to bar the plaintiff from recovery of reasonable compensation for his services and of allowance for his expenses. The value of benefit accruing to and accepted by the city was the only theory of damages submitted. This restriction necessarily was predicated on a view that any re-engagement of the plaintiff by the director was as much invalid as the original contract. The jury's verdict, being for the plaintiff, involves a finding of re-engagement to take the place of the contract. They were instructed to find for the city if the services were rendered under the contract.

In considering the right of recovery under the theory adopted, the preliminary question whether recovery would lie, regardless of the conditions of acceptance of the services by the city and benefit to it therefrom, requires examination.

Assuming an abandonment of the contract and a re-engagement for the services, the re-engagement was the employment of an agent with no agreed price to be paid for the services which might be rendered thereunder. The law above cited vests the director with "authority to employ, appoint or hire * * * agents * * * and other persons as he may deem expedient." Section 4. But this authority, although sole and uncontrolled, is to be exercised only in conformance with the act and under the restrictions the act contains. It is provided by the act that the commissioners of the department shall "fix a minimum and maximum scale of wages for each grade or relative position (hereinafter provided for) subject to the approval of the mayor." Section 3. And the director is to establish "a schedule of grades or relative positions to include all * * * agents * * * and all other persons" employed in carrying on the work of the department. Section 4.

These extracts from the act are to support its evident general scheme that substantial financial control of the department was to be reserved in the mayor. All contracts for supplies and work required his approval, all appropriations are to be expended by the director with such approval, and all bills and pay rolls are to receive his approval before they are paid.

The director has no voice in fixing the wage scale, in respect to its limits. Since it extends to any service in the department, the conclusion follows that he has no authority to bind the city for any engagement of service not within some range of payment therefor promulgated by the commissioners and receiving the mayor's approval. He may not employ service until others have determined how much and how little he may pay therefor, and then only within the range thus fixed.

While the mayor may not supervise the director's control and conduct of the department, it is his duty to oversee its financial management. The act designs that the director shall have no free rein in incurring expense or using appropriations. The cost of whatever is proposed to be done must receive the mayor's consent before liability therefor is created, at least within the fixed limits.

The re-engagement of the plaintiff, as found by the jury, implied as one of its terms that he was to receive fair and just allowance for his services and expenses. The record contains no evidence of any scale of payment within a fixed range established for the "relative" nature of service the plaintiff performed. Until one was established, the director was no more authorized to engage service with no price agreed upon for it than when the price was agreed. If he might employ service for reasonable compensation, leaving open determination of the amount, it would tend to weaken the aim of the statute to reserve financial control. Obviously the director lacks authority to engage service for which no limits of pay have been fixed. The fact that the service is to be rendered for an indefinite time and irregularly during its course does not alter the engagement in a manner to make it authorized.

The plaintiff rendered services under the director's orders during a period of four or five months, charging at the rate of $5 an hour therefor and in addition for his expenses. He is a civil engineer of standing. Calling his charge proper in amount, on a basis of a six-hour day for a 300 working day year, it was at an annual rate of $9,000, omitting expenses. To hold that the act allowed the director to employ agents on such terms, free from all interference and control, would be a construction by which a result meant to be guarded against and avoided would be permitted.

If until the limts of the wage scale are fixed the director may assume the right to say that they are left to him to determine, he would have delegated to him an unexercised duty of others. The statute may be read to such effect with no escape from the result that the right would oppose and be in conflict with its plan of financial control. And the provision that no appropriation shall be expended without the mayor's approval would also be disregarded.

The conclusion is reached that the director had no more authority to engage the plaintiff as the jury found he did than under the original contract.

The statute set forth the limits of the director's authority. He was in no way held out to indicate that he had a broader authority. The plaintiff was not entitled, as against the city, to rely on the director's asserted or assumed exercise of authority not possessed. The confines of his actual authority marked all that would render the city liable for anything he did. The...