Twombly v. Selectmen of Billerica

• Decision Date: 10 January 1928
• Citation: 159 N.E. 630,262 Mass. 214
• Parties: TWOMBLY et al. v. SELECTMEN OF BILLERICA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 214

159 N.E. 630

TWOMBLY et al.

v.SELECTMEN OF BILLERICA et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 10, 1928.

Appeal from Superior Court, Middlesex County; N. P. Brown, Judge.

Suit by Edgar F. Twombly and others against the Selectment of Billerica and others. From a decree dismissing their bill, plaintiffs appeal. Affirmed.

J. P. Donahue and G. F. Toye, both of Lowell, for appellants.

R. B. Walsh, of Lowell, for appellees Selectmen of Billerica and others.

W. R. Bigelow, of Boston, for appellee Framingham Const. & Supply Co.

RUGG, C. J.

This is a suit in equity brought under G. L. c. 40, § 53, by taxable inhabitants of the town of Billerica to enjoin the payment of money from the treasury of that town upon a contract alleged to be illegal. The case was sent to a master. A decree was entered in the superior court dismissing the bill. The plaintiffs appealed. When the case came on to be argued at the bar of this court, the defendants offered for filing an amendment to their answer setting up that, subsequently to the hearing before the master, the contract had been ratified by the town at a legal town meeting by vote passed pursuant to a sufficient article in the warrant. This amendment was in proper form. It was designed to invoke a defense occurring since entry of the final decree. In point of substance the motion to amend the answer is proper. It naturally would be allowed, if ordered in the trial court, as enabling the court to adapt the final disposition of the case to the facts then existing. Day v. Mills, 213 Mass. 585, 587, 100 N. E. 1113;Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 9, 107 N. E. 426, Ann. Cas. 1917A, 145;Ensign v. Faxon, 229 Mass. 231, 233, 118 N. E. 337;Boston & Maine Railroad v. Cate, 254 Mass. 248, 250, 150 N. E. 210; equity rule 6.

[1] The amendment was offered at the argument before us under G. L. c. 231, § 125, whereby all powers of amendment possessed by the court below are conferred upon the full court. This power will not be exerted save in instances where justice seems to require it. The plaintiffs object to the allowance of the amendment but do not dispute the facts set up in the proposed amendment. If the case should be decided here adversely to the defendants, they could offer the same amendment to the answer in the superior court after rescript and before final decree, and under the authority of the decisions already cited it well might be allowed and become the basis of the final decree, and thus all that had been decided on the appeal would go for naught so far as concerns the ultimate rights of the parties. It seems a wiser administration of justice to act under G. L. c. 231, § 125, and consider the matter at once. The motion to amend the answer is allowed.

The salient allegations in the bill are that the town of Billerica at a town meeting authorized general repairs to be done on designated portions of three separate roads, made a certain and separate appropriation for each of the three roads, and that thereby under G. L. c. 41, § 62, the highway surveyor alone became and was authorized and required to make the repairs and to expend the money appropriated therefor; that the selectmen without authority in law contracted with one of the defendants to make repairs on the three roads for a gross sum without specification as to the amount to be expended on each piece of road; that the contract price exceeded the appropriations available; that the portions of the three roads described in the contract, were not in accordance with the votes of the town; that hence the contract was illegal; and that the moneys of the town could not lawfully be expended in payment for its performance. The answers of the defendants raised somewhat complicated issues of fact and of law as to each of these allegations, respecting which the master has made report.

The contract was made on June 11, 1926; work was begun under it on June 15 and continued through June 28, when it ceased presumably because of this litigaton. Hearings were had before the master, and his report was filed on October 28, 1926. Hearing was had in the superior court and final decree entered on January 28, 1927. The appeal was seasonably taken and prosecuted. In this state of affairs a town meeting was held on June 1, 1927. An article in the warrant for that meeting was, ‘To see (1) whether the town will vote to ratify the contract dated June 11, 1926, entered into between the town acting through its board of selectmen for the time being, and the Framingham Construction & Supply Company, for the reconstruction of portions of Concord road, River street and Mt. Pleasant street’; (2) whether after ratification the town would rescind the contract and authorize settlement with the contractor; (3) whether after such rescission the town would authorize the three particular road repairs authorized by votes under specified articles of the town meeting of 1926, to be done under the direction of the highway surveyor; (4) whether the town would take further action touching the matter. When this article was under consideration at the town meeting, it was voted ‘that the town ratify the contract dated June 11, 1926, entered into between the town, acting through its board of selectmen for the time being, and the Framingham Construction & Supply Company for the reconstruction of portions of Concord road, River street, and Mt. Pleasant street.’ Further paragraphs of the vote deal with the other paragraphs of the article and are more or less conditional in their effect. Under subdivision (4) it was voted that the votes under subdivisions (2) and (3) should not become effective ‘until the termination of the litigation now pending concerning said contract or upon the dissolution of the injunction issued in said litigation.’ It is not necesessary to consider in detail the other parts of the vote or to pass upon their effect or validity, because the vote to ratify the contract stands by itself and is not dependent upon any subsequent votes. It is separate and distinct from what follows. It is direct, clear and unmistakable in its terms. It is positive and without qualification in its scope.

[2][3] The article in the warrant was sufficient to present the subject fully to the town. In order that a vote of that nature may constitute a ratification, ‘it must appear that the town had full knowledge of all the essential facts concerning the transaction to which the vote relates. Dickinson v. Conway, 12 Allen, 487,Brown v. Melrose, 155 Mass. 587 .’ Meader v. West Newbury, 256 Mass. 37, 40, 152 N. E. 315, 316. The article and the votes disclose the date and subject-matter of the contract, the parties to the contract and the officers who undertook to make it on the part of the town, the fact that there was pending litigation concerning it, and by inference that the highway surveyor claimed the right to do the work. It would be difficult to conceive a case where there would be disclosed on the records of the town greater knowledge of essential facts.

[4] The circumstances that the vote of ratification was passed at a special instead of at the annual town meeting is of no consequence. Moloney v....