Blanchard v. Inhabitants of Blackstone

102 Mass. 343 | Mass. | 1869

Gray, J.

1. The agreement declared on purports throughout the body of it to be the agreement of the town of Blackstone and not the personal contract of the selectmen. The selectmen were authorized by vote of the town to make the agreement in behalf of the town. The signature was sufficient in form to render this agreement binding on the' town as a simple contract The agreement was not of a nature which required a seal. It is therefore unnecessary to inquire whether either of the seals affixed to it could be deemed the seal of the town ; for, if not the deed of the town, it is certainly neither the deed nor the simple contract of the agent; if it acquires no validity, it certainly loses none, by the affixing of the seals; and, if the seals have no effect, they may be disregarded, and the agreement held to bind the town as a simple contract. Sherman v. Fitch, 98 Mass. 59.

2. There was evidence tending to show that the agreement was written and signed on behalf of both parties in an attorney’s office, and, after being thus completed, was left with him for the purpose of having a duplicate made and sent to the plaintiff. This was sufficient evidence to warrant the jury in finding a delivery of the agreement; and it was submitted to them with proper instructions. Anything done or said by the parties, with the understanding that it shall operate as a delivery, will have the effect intended. Leaving the instrument on the table, or in the hands of a third person, both parties understanding that it shall operate as a delivery, is sufficient, even in the case of a deed. Shep. Touch. 58. Foster v. Mansfield, 3 Met. 412. Shaw v. Hayward, 7 Cush. 170. Kidner v. Keith, 15 C. B. (N. S.) 35. Parmelee v. Simpson, 5 Wallace, 81, 86. The presumption is that the parties knew that a delivery was required by law to give effect to the agreement. This presumption was not stated to the jury as conclusive; but they were expressly told that if the parties “ should meet, not knowing that delivery was necessary, and do the same acts, not intending that they should operate as a delivery, it would not be a good delivery.”

3. The agreement did not fix the spot upon which the building was to be erected. It was therefore the duty of the town to furnish a place. If the town unreasonably omitted to perform this duty, it was as much a hindering and preventing of the performance of the agreement by the plaintiff, as if the town had expressly refused to select a place, or had done any other affirmative act to interrupt his performance of the agreement.

4. The vote authorizing the selectmen to erect the building for the use of the town necessarily involved an authority to select a place for the building, as well as to make a contract for its erection. The declarations of the chairman of the selectmen, in conversation with the contractor, or with his father as his agent, after the making of such a contract, were therefore rightly admitted in evidence against the town, as admissions of an agent while negotiating about the contract and within the scope of his agency. Morse v. Connecticut River Railroad Co. 6 Gray, 450. Burgess v. Wareham, 7 Gray, 347. As applied to these declarations, which seem to have been the only acts of one selectman of which there was any evidence, the instruction that “ if one selectman, undertaking to act for the board, did anything, the jury may consider his act as the act of the board,” would seem to afford no ground of exception.

5. But the declarations of Lamb were improperly admitted, because the authority of the committee of which he was a member was limited, by the terms of the vote appointing them, to examining into the expediency of erecting the building and reporting their doings at a future meeting of the town. Wheeler v. Framingham, 12 Cush. 287. As we cannot know that the jury were not influenced by this evidence in finding a verdict for the plaintiff, upon this single point the

Exceptions are sustained.