Adams v. County of Essex

91 N.E. 557, 205 Mass. 189, 1910 Mass. LEXIS 989

Opinion

Braley, J.

The declaration is upon an account annexed of four items, but, the fourth having been waived, the other items are for services rendered by the plaintiff as an architect in preparing and furnishing plans for proposed county buildings and for proposed alterations in the building used for the registry of deeds. By their answer to the first question, the jury have determined that, exclusive of the second item, the total amount charged represents the fair and reasonable value of the services, and the - questions for decision are, whether the defendant is responsible for the whole, or for any part of this sum, or for the amount of the second item.

In employing the plaintiff, the county commissioners, although a local body whose duties related principally to the affairs of the county, acted as a board of statutory officers whose power to bind the county by contract depended upon the authority conferred by the Legislature. Morse v. Norfolk County, 170 Mass. 555, 556. Connors v. Stone, 177 Mass. 424, 428. By the Rev. Sts. c. 14, § 31, county commissioners were empowered “to provide for the erecting and repairing of court houses, jails, and other necessary public buildings, within and for the use of the county.” Mo restriction seems to have been placed upon the amount necessary to be expended, which was apparently left to the sound judgment of the board. But by § 32, in making the estimates of taxes for county charges to be laid annually before the General Court, they were required to include for the next ensuing year all charges and debts for the building and repairin of court houses and other county buildings. The Gen. Sts. c. 17; §§ 16 and 18, and Pub. Sts. c. 22, § 20, and c. 23, § 22, by re-enactment contained similar provisions. To check a growin tendency to extravagance, accompanied by other evils in th management of county affairs, St. 1897, c. 137, to further defin the powers and duties of county commissioners, was passed. The first section amended Pub. Sts. c. 22, § 20, by providing, “ but no money shall be paid or liability incurred for erecting such buildings in excess of the amount specifically authorized by the General Court therefor, or, except in case of emergency, for the repairing of such buildings in excess of the amount authorized by the General Court for the repairs of county buildings.” By this statute, which is now embodied in R. L. c. 20, § 24, where the proper accommodation of the public demands that a county building should be improved and made more convenient by extensive alterations, or enlarged by the erection of additions, so that when completed substantially a new structure has been provided, it is the duty of the commissioners before contracting for any expenditure to call the attention of the Legislature to the necessity and ask for an appropriation, which if granted they cannot lawfully exceed. District Attorney v. County Commissioners, 14 Gray, 138. Morse v. Norfolk County, 170 Mass. 555.

It is conceded that under the provisions of the special acts the commissioners had not been authorized to make over the old building occupied by the registry of deeds and of probate, or to build a boiler house, and to contract for the preparation of plans as a necessary part of the work. Sts. 1902, c. 266 ; 1905, cc. 423, 430; 1907, c. 151. The plaintiff rests his right of recovery upon the ground, that his employment was authorized under R. L. c. 20, § 27, permitting an oral contract without competitive bids where the amount involved does not exceed $800, and that as § 24 also authorizes the commissioners “ to represent their county, and to have . . . the management of its business and affairs in all cases not otherwise expressly provided for,” the defendant is liable under the second item, because one of the incidental purposes, for which plans showing the proposed reconstruction were prepared, was for use at a legislative hearing in opposition to the building of a new court house, which in the judgment of the commissioners would impose an unnecessary expense upon the county. In each instance the plaintiff furnished. the plans at the oral request of the commissioners, although afterwards upon presentation they indorsed the bills, as allowed. It may be questioned whether the commissioners could contract for the county except by a majority vote at a meeting of the board of which the members had received notice or were present, and their action recorded as required by R. L. c. 20, § 18. Reed v. Scituate, 5 Allen, 120, 124. Damon v. Selectmen of Framingham, 195 Mass. 72, 78. But independently of this doubt, as it does not appear that any appropriation had been provided under § 24, with which § 27 must be read, they were not authorized to bind the county by either contract, and the ruling that the plaintiff could not recover on the second item was correct. Connors v. Stone, ubi supra.

In reaching the same result as to the third item, we have not overlooked the subsequent St. of 1906, c. 294, providing an additional grant for furnishing and equipping the new registry and probate building, and authorizing the erection and equipment •of an isolated heating plant, which was however to be constructed subject to the provisions of the St. of 1905, c. 423. By § 2 of that act, authority to contract for plans having been expressly delegated to a special board, the county commission■ers were deprived of any power to confirm their previous employment of the plaintiff.

We now come to the first item, over which the principal controversy arises. By St. of 1902, c. 266, § 1, the county commissioners were given authority to take land by purchase or otherwise as far as might be necessary, “ for a new building for the use of the registry of deeds for the southern district of said county, and for the Probate Court of said county, and to prepare suitable plans for such building. For these purposes they may expend a sum not exceeding fifty thousand dollars.” To meet the expenses to be incurred, § 4 authorized them from time to time to borrow this sum on the credit of the county, and the money was procured and placed in the treasury. At the time of its passage R. L. c. 20, § 27, was in force, providing that “ all contracts . . . for building, altering, furnishing or repairing public buildings, or for the construction of public works . . . shall, if exceeding eight hundred dollars in amount, be made in writing, after notice for proposals therefor has been posted in a conspicuous place in the county court house for at least one week and has been published at least three times in a newspaper, if any, published in the city or town interested in the work contracted for; otherwise in the newspaper of the most general circulation in the county.” If this is not done, “ no contract made in violation of the provisions of this section shall be valid against the county, and no payment thereon shall be made by the county.” It is therefore manifest that the authority of the commissioners was limited and defined by these statutes, with notice of which the plaintiff was charged. Edge Moor Bridge Works v. County of Bristol, 170 Mass. 528, 533. Boston Electric Co. v. Cambridge, 163 Mass. 64. Wormstead v. Lynn, 184 Mass. 425. Webb Granite & Construction Co. v. Worcester, 187 Mass. 385, 387. Revere Water Co. v. Winthrop, 192 Mass. 455. Bartlett v. Lowell, 201 Mass. 151. Friedman v. County of Hampden, 204 Mass. 494.

Without having advertised for proposals, the board at a regular meeting held on December 12,1904, unanimously voted to employ the plaintiff as an architect, “ to prepare plans for a building in Salem under St. 1902, c. 266,” but no definite compensation was named, nor was any contract in writing prepared and signed. The plans, although furnished in consequence of the vote, were never used, as they were not accepted by the supervisory commission subsequently created by the St. of 1905, c. 423, § 2, to whom alone plans were to be submitted, and approved. At that time no appropriation for the building had been made, although subsequently by St. of 1905, c. 423, it was provided.

If the agreement with the plaintiff shown by the recorded vote, and his acceptance, were a contract, the consideration of which was the fair and reasonable value of his "services, one of the purposes of § 27 is to prevent in any form contracts exceeding the limitation, unless the other requirements are strictly followed. It would nullify not only the letter, but the spirit of the law, to hold that the county had been bound, where the commissioners and the plaintiff must have understood that by the usual standard of compensation, which is a percentage based upon the estimated cost of the building, the amount involved would exceed the limit. It would be difficult to assume that the commissioners acted ignorantly, yet if they disregarded the requirements of § 27, the plaintiff must have known that his services would exceed the amount. Wormstead v. Lynn, ubi supra. See Cutter v. County of Middlesex, 189 Mass. 451, 456. But while this question has been argued at length in the defendant’s brief, and necessarily calls for discussion, it does not appear that this defense, which would have been decisive, was passed upon at the trial, or, if presented, is not reserved by the terms of the report.

But if the contract is held to be valid and binding on the county, we find no error of law. The plaintiff admits that the commissioners could not exceed the amount provided by St. of 1902, c. 266. By this act suitable plans were specifically named, and although the St. of 1905, c. 430, granted an additional appropriation, which might be augmented by money received from the sale of buildings or parts of buildings and material on the land acquired for the site of the court house, no reference to plans is found, and no part of the increase over the original sum could be used for this purpose. R. L. c. 20, § 24. Connors v. Stone, ubi supra. Boston Electric Co. v. Cambridge, ubi supra. If the consideration of the contract was unliquidated, there is no question that at the time of the vote the specific amount in the treasury, not having been drawn upon except for a small disbursement, or anticipated by previous contracts, was more than enough to pay for the plaintiff’s services. It was plainly the duty of the commissioners not to incur subsequent indebtedness to such an amount as to exhaust it, without leaving a sufficient balance, or if, after payment for the plans, the appropriation was deemed insufficient because it probably would be exceeded in paying for the land, to apply to the Legislature to grant an additional amount' sufficiently ample to provide for the deficiency. District Attorney v. County Commissioners, ubi supra. The plaintiff, however, as we have said, must be presumed to have known of the limitation, and the purposes for which the money had been provided, and he also must have been aware that until the land was bought the court house could not be erected or his plans used, and to have contracted accordingly. It would abrogate the provisions of R. L. c. 20, § 24, if the commissioners, while expending the money for the purposes specified, could exceed the sum named, and it is apparent that the deficit arises from subsequent payments for the land.

But the plaintiff’s argument cannot be sustained, that the payments were illegal because not made by the county treasures in conformity with R. L. c. 21, § 9, which provides that “ no payments . . . shall be made by a treasurer except upon orders drawn and signed by a majority of the county commissioners, certified by their clerk and accompanied ... by the original bills, vouchers or evidences of county indebtedness for which payment is ordered, stating in detail the items and confirming such bill or account. Said clerk shall not certify such orders until he has recorded them in the records of the county commissioners.” The treasurer testified without contradiction, that the sums so paid were included in the accounts properly certified by the assistant clerk of courts as having been allowed by the commissioners, and the various deeds of conveyance running to the county which he also received properly may be deemed “ vouchers or evidences of county indebtedness,” within the obvious meaning of the statute.

By these payments the appropriation was exhausted, with the exception of a very small balance.

If the appropriation, as the plaintiff contends, is considered as a fund, which until the limit was reached should have been apportioned by priority between him and those from whom the land was obtained, in the order of purchase, until it was exhausted, the commissioners were not acting as the defendant’s agents, and their negligence in permitting the fund to be thus reduced does not enable the plaintiff to hold the county for a sum sufficient to satisfy the remainder of his demand. Morse v. Norfolk County, Wormstead v. Lynn, Connors v. Stone, ubi supra. McManus v. Weston, 164 Mass. 263. It is the plaintiff’s misfortune, that, after crediting the payments received, his recovery can be for only the nominal sum remaining unexpended of the original appropriation, but, from what we have said, his requests for rulings were rightly refused, and, by the agreement of the parties stated in the report, the entry must be, judgment on the verdict.

So ordered.