Sheridan v. City of Salem

19 N.E. 172, 148 Mass. 196, 1889 Mass. LEXIS 238

Opinion

C. Allen, J.

There was sufficient evidence, in our opinion, to warrant a finding by the jury, that there was a waiver of the requirement of a written permit, which would be binding upon the city. The provision requiring the permit to be in writing was merely for the benefit and convenience of the city. Mo general principle of public morals or policy is involved in it. Such a provision may be waived, like any other requirements intended merely for the security or benefit of a party, no matter whether contained in a contract, a city ordinance, a statute, or in the Constitution itself. Morrison v. Underwood, 5 Cush. 52, 55. Pacific Ins. Co. v. Canterbury, 104 Mass. 433, 435. See also Rutland v. County Commissioners, 20 Pick. 71, 81, 83, where a waiver by a town was established from acts of its officers.

The matter of sewers is within the general province of the mayor and aldermen. Pub. Sts. c. 50, § 1. The mayor and aldermen are the same as the board of aldermen. St. 1882, c. 164. When the commissioner of streets made his report to the board of aldermen, there is nothing to show that they were in any way misled as to his manner of granting permits. If they knew the facts, or if they had all the knowledge of the facts which they cared 'to have, and were not in any manner misled, and if they accepted his report of permits granted by him as showing sufficient and valid permits, and so caused the plaintiff’s name to be entered upon their records as one to whom a valid permit had been granted, they knowing or having reason to believe that he had paid the sum assessed by themselves upon him for such permit, the jury might properly find that they waived a compliance with the formality of giving to him a permit in writing, and such waiver would be binding upon the city.

New trial ordered.