United States Drainage & Irrigation Co. v. City of Medford

• Citation: 225 Mass. 467,114 N.E. 734
• Parties: UNITED STATES DRAINAGE & IRRIGATION CO. v. CITY OF MEDFORD.
• Decision Date: 05 January 1917
• Court: United States State Supreme Judicial Court of Massachusetts

225 Mass. 467

114 N.E. 734

UNITED STATES DRAINAGE & IRRIGATION CO.

v.CITY OF MEDFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 5, 1917.

Report from Superior Court, Middlesex County; Henry A. King, Judge.

Action by the United States Drainage & Irrigation Company against the City of Medford. On report of a judge of the superior court, who heard the case without a jury and found the facts as stated in an auditor's report. Judgment ordered to be entered for defendant.

S. R. Cutler and H. W. James, both of Boston, for plaintiff.

C. S. Baxter and G. C. Scott, both of Boston, for defendant.

PIERCE, J.

In the spring of 1913, ten separate petitions were duly presented to the board of health of the city of Medford, alleging that the land described therein is wet, rotten, spongy and covered with stagnant water, so that it is offensive to residents in its vicinity and is injurious to the public health, and to the health of the petitioners; that said land constitutes a nuisance, source of filth and cause of sickness to the petitioners and to the public, and praying that the same be deemed a nuisance and abated as is provided by chapter 75 of the Revised Laws, §§ 75 and 85 inclusive.

June 11, 1913, the board of health issued an order of notice on each of nine of the original ten petitions in terms following:

‘To the petitioners upon the foregoing petition; all persons whose land it may be necessary to enter upon to abate the nuisance described in said petition; or any other person who may be damaged or benefited by the proceedings prayed for in said petition, and the mayor of the city of Medford. Notice is hereby given that the board of health of Medford has appointed the twentieth day of June, A. D. 1913, at 8 p. m., and their office in the city hall of Medford as the time and place for a hearing upon said petition, at which time and place you may be heard upon the necessity and mode of abating said nuisance, the question of the damages and of the assessment, and apportionment of the expenses of said abatement.’

The record of the board shows that the notices were duly served upon all parties entitled thereto; that the board duly heard all parties appearing at the time and place appointed in the notice; that the board viewed the premises described in the several petitions and thereupon it ‘adjudged and determined’ as to each petition that:

‘Said petition is hereby granted; that the land described in said petition is rotten, spongy, and covered with stagnant water, and is offensive to the residents in the vicinity thereof, and injurious to the public health and to the health of the petitioners, and constitutes a nuisance to the petitioners and to the public; and that the expense of abating said nuisance and remedying said injury will amount to a sum not exceeding two thousand (2,000) dollars, to wit: $2,000 that said nuisance and injury shall be abated and remedied by said board by entering from time to time, upon a certain parcel of land together to the adjacent land drained thereby and bounded and described as follows. * * *’

After the adjudication of the nuisance the board of health and the plaintiff corporation entered into nine distinct contracts, copies of which are set out in the nine counts of the declaration. By the terms of each contract, the plaintiff agreed to lay out and excavate all drainage ditches that may be required at this time for the purpose of mosquito extermination in all the salt marsh area described in each of the contracts, and the board of health agreed to pay as compensation therefor a sum of money per acre measured and determined by the acreage drained. Under these contracts the largest sum to be paid upon the performance of any one contract is $1,662.90, and the smallest $108.30. The testimonium clause of each contract reads:

‘In witness whereof the said parties have hereto set their hands and seals this 19 day of July, A. D. 1913.’

Each of the instruments is signed by the three individuals constituting the board of health and by the plaintiff corporation by its president, and bears the corporate seal. Upon some of the contracts there are brackets enclosing the letters ‘L. S.’ opposite the names of the signers; but no seal of wax or other adhesive substance is impressed or affixed to or upon any contract.

The plaintiff, subsequent to July 19, 1913, proceeded and performed the work in accordance with the terms of the contract, and no payments have been made therefor. Subsequent to the completion of the work by the plaintiff, the board of health proceeded to assess the benefits on account of the abatement of the nuisance, or nuisances, upon the several tracts of land adjudged benefited thereby. No specific appropriation was made by the city of Medford to carry out said work and of the general appropriation made for the board of health for the fiscal year 1913, less than $600 remained unexpended on July 19, 1913. April 2, 1914, an action was brought against the city of Medford to recover damages resulting to the plaintiff by reason of the refusal of the defendant to pay to the plaintiff the compensation agreed to be paid to it by the board of health upon its performance of the contracts. The case is before us upon a report of a judge of the superior court who heard it without a jury and found the facts to be as stated in an auditor's report, which is made a part of this report and is the only evidence.

The contention of the defendant that the written contracts declared on do not bind the city because they are contracts under seal not executed in the name of the city and as its contracts, but in the names and as the contracts of the individuals who signed and sealed them, is without force for the all-sufficient reason that there is no individual seal of wax or...