Lord v. Town of Winchester

38 Mass. App. Dec. 30

• Court: Massachusetts District Court, Appellate Division
• Decided: June 28, 1967
• Docket: No. 6487; No. 714
• Status: Published

Opinion

Connolly, J.

This is an action of contract, although the plaintiff refers to it as one of “assumpsit”. Assumpsit is now included in contract actions., Gr.L. c. 231, ^ 1.

The plaintiff seeks to recover for Ms services and the expenses he incurred in Ms efforts to prevent the defendant municipality from selling certain land.

The mumcipality later used the land as a site for a school.

The efforts of the plaintiff consisted in bringing a bill in equity against the defendant muMcipality to enjoin the sale. The bill was dismissed and the dismissal affirmed in our Supreme Court in a rescript opinion. Lord v. Board of Selectmen of Winchester, 346 Mass. 786.

Herbert Lord Pro Se Plaintiff Leonard J. Mullen for Defendant

The trial judge made the following findings and rulings:

“The case was submitted to the court on plaintiff’s declaration and other pleadings. The court finds that even assuming that the plaintiff could prove everything alleged in his declaration that he has not made a cause of action.

* ‘ The plaintiff filed six requests for rulings, all of which are denied as the court finds that they are all immaterial to its findings.”

We concur with the trial judge.

The plaintiff was a volunteer. He concedes he had no contract with the defendant municipality.

For a municipality to be bound in an action of contract, there must be a contract and not only must there be an underlying authority in the municipality to make the contract, but the contract must be made on its behalf by a duly authorized agent.

If any of these elements is missing, there is no liability on the municipality to perform even in quantum meruit. Gr.L. c. 40, § 4; M. P. S. Vol. 18, Hardy, § 8 Lowell v. Mass. Bonding Insurance Co., 313 Mass. 257, 272.

There being no error, the report is dismissed.