FRANCIS E. RYAN vs. CITY OF SOMERVILLE & another.

FRANCIS E. RYAN vs. CITY OF SOMERVILLE & another.

328 Mass. 324

November 8, 1951 - January 30, 1952

Middlesex County

Present: QUA, C.J., LUMMUS, RONAN, & SPALDING, JJ.

A purported contract by the city of Somerville for collection of garbage, which would involve the city in expense through furnishing certain workmen, was invalid for want of the certification by the city auditor required by a provision of the city charter that a "contract . . . for the performance of labor . . . shall [not] be awarded by the city unless and until the city auditor has certified on said contract . . . that there is . . . [a sufficient] unencumbered balance in the appropriation chargeable therefor."

A city was not estopped from asserting that an executory contract purportedly made by it was invalid for want of a certain certification by the city auditor thereon required by the city charter.

BILL IN EQUITY for a declaratory decree, filed in the Superior Court on August 16, 1950.

The suit was heard by Good, J.

C. S. McLaughlin, for the plaintiff.

G. R. Farnum, (R. J. Muldoon, City Solicitor, with him,) for the defendants.

LUMMUS, J. On August 16, 1950, the plaintiff filed this bill in equity against the city of Somerville and its mayor, John M. Lynch, to have adjudged valid a contract awarded by the city to the plaintiff on December 14, 1949, for the collection of garbage in said city for five years. The defendants deny the validity of the contract. The judge found specially that the contract "did not contain certification by the city auditor as required by law," and entered a final decree adjudging that the contract is invalid, with costs to the defendants. The plaintiff appealed. The evidence is reported, but there is no finding of facts beyond the fact above stated.

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By St. 1937, c. 363, the city charter (Lynch v. Somerville, 326 Mass. 68 ) was amended by the insertion of the following provision: "No contract or order for the performance of labor . . . , except in cases of special emergency involving the health or safety of the people or their property, shall be awarded by the city unless and until the city auditor has certified on said contract or order that there is an unencumbered balance in the appropriation chargeable therefor sufficient to cover the cost of said labor . . . ." There is no suggestion that any "special emergency" existed. The contract involved the city in expense, because it provided that the city should furnish four employees for each of six trucks, and all the city was to receive was $100 a year. No certificate by the city auditor appears "on said contract" or elsewhere. There was some evidence that a certificate by the auditor had been on the contract, but the judge was entitled to disbelieve it, and to find as he did, and we cannot say that he was plainly wrong.

In Adalian Brothers, Inc. v. Boston, 323 Mass. 629 , 631, the present Chief Justice said, "Persons dealing with a municipality must take notice of limitations . . . upon the contracting power of the municipality and are bound by them and cannot recover upon contracts attempted to be made in violation of them." In Wormstead v. Lynn, 184 Mass. 425 , 428, it was said that where a person enters into a contract with a public officer purporting to act for a municipality, "Such a person is bound at his peril to ascertain the extent of the authority of the public officer with whom he deals." See also Duff v. Southbridge, 325 Mass. 224 , 228; Quincy v. Brooks-Skinner, Inc. 325 Mass. 406 , 413.

But the plaintiff contends that the city is estopped to set up the invalidity of the contract. He relies on Aetna Mills v. Waltham, 126 Mass. 422 , and Spaulding v. Plainville, 218 Mass. 321 . In the former case a town, having the right to take the waters of the Charles River, and having purported to exercise that right and having actually taken and used those waters, was held precluded from denying the technical validity of the taking in a petition for damages

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for the waters taken. The latter case determines the same principle. In that latter case, at page 323, Loring, J., stated the doctrine of Cowdrey v. Woburn, 136 Mass. 409 , to be that "where a person has done an act which can be justified only on the assumption that he has taken the property of another, the owner of the property can proceed against that person on the ground that the property has been taken, and that it does not lie in the mouth of that person to set up in defense that he has not done the formal act which the Legislature required him to do if he took the property." Compare Breckwood Real Estate Co. v. Springfield, 258 Mass. 111 , 115; Reed v. Springfield, 258 Mass. 115 , 118.

Those cases of estoppel have no application to the case at bar. They were cases of executed transactions. We are here dealing with an executory contract. In those cases the municipality itself exercised dominion over property to which it had no right except upon the footing of a valid taking. In this case the city is exercising no dominion over anything. The plaintiff seeks to fasten upon it liability for the acts of public officers who have failed to do acts that are necessary to bind it. In our opinion no estoppel is shown.

Since the lack of certification by the city auditor is fatal to the validity of the contract, we need not consider the other questions argued. The case is governed by Lynch v. Somerville, 326 Mass. 68 .

Decree affirmed with costs of appeal.