345 Mass. 477 | Mass. | 1963
The city of Medford brought this action on a bond given by Fellsmere Realty Co., Inc. (Fells-mere), as principal, and New Amsterdam Casualty Company (New Amsterdam), as surety, conditioned in substance on Fellsmere’s complying with the requirements of the planning board of the city imposed in connection with its approval of Fellsmere’s plan of a subdivision of land, including an extension of Maurice Street, under the subdivision control law. (G. L. e. 41, §§ 81K-81GG, inserted by St. 1953, c. 674, § 7.)
After an auditor’s report (facts final) a judge in the Superior Court ordered judgment for New Amsterdam, and for the city against Fellsmere for the damages found by the auditor, with interest ($6,725.60). These are the city’s exceptions to the denial of its motion for judgment against New Amsterdam and to the order for judgment for New Amsterdam.
The bill of exceptions purports to incorporate seven exhibits and to provide that they “may be used at the . . . argument or ... on briefs.” Certain of these exhibits are so mentioned in the auditor’s report as to be incorporated therein by reference. Good practice, however, calls for the filing with the clerk, as an express part of the report, any exhibits intended to be included therein.
Fellsmere’s application for approval of its subdivision plan was a part of a form which included the “revised subdivision regulations ’ ’ of the planning board under authority of G. L. c. 41, “Sections 81-K to 81-U . . . inserted by . . . [St. 1947, c. 340].” The reference is to the subdivision control law prior to the 1953 amendment. The application recites that it is made “subject to all the rules and regulations of the . . . board,” and that the “applicant hereby certifies that arrangements have been made with the appropriate private utility companies and city departments concerned for supplying to every lot in the subdivision electricity, (gas), telephone service, water and sanitary sewerage; and, further, that the applicant agrees to bear any charges that may be made by the appropriate private utility
Regulation J provides: “Installation of Certain Public Utilities Required — The subdivider shall, at his own expense, install the necessary pipes and appurtenances to take care of the surface and subsurface water of the roadways and adjoining land. The size and quality of the pipes, manholes, catch basins, as well as their number, location and depth shall be as specified by the city engineer. Sanitary sewer and water lines and their appurtenances necessary to serve the subdivisions will be installed by the city, subject to the usual frontage assessments (in the case of sanitary sewer lines), house connection charges (in the cases of both water and sanitary sewer lines), and water charges.”
The condition of the bond is that Pellsmere ‘ ‘ shall in all things stand to and abide by, and well and truly keep and perform, in the time and manner specified, the covenants, conditions and agreements in the application and agreement signed by the planning board January 25, 1956, being the written requirements specifying the work to be done by . . . [Pellsmere] under which approval of a certain subdivision known as Maurice Street Extension has been granted.”
The bond is attached to a document signed by the planning board under date of January 25, 1956, and by Fells-mere, entitled “Requirements of Planning Board on Pet. #183 . . . Por the Laying out of Maurice St. . . . as shown on two plans accompanying the petition (hereinafter described).” It recites a vote that the board would approve the petition upon receipt of a bond, “approval to be based upon the satisfactory completion of the physical work hereinafter described. ’ ’ Included in the description of the work is the requirement all “utilities, including connections to the street line, shall be installed before the gravel course is placed.”
The auditor found, inter alla, as follows: In April, 1956, when the street had been brought to rough grade Pellsmere
The auditor concluded that regulation J applied with equal force to the city and Fellsmere and, in substance, that the failure of the city to install water and sewer facilities was a breach of an obligation imposed on the city by regu
The order for judgment for New Amsterdam cannot be sustained on the precise ground indicated in the auditor’s report.
The planning board had no authority to impose upon the city an obligation to construct the sewer and water mains. G. L. c. 41, §§ 81A-81GG. The statement in regulation J of what the city would do, therefore, could not reasonably be understood as an undertaking for the city by the planning board.
This statement stands, however, as a recital of the understanding of both the planning board and the principal on the bond of what another department would do to make it possible for the principal to do the bonded work. We think it was a condition of the bonded obligation to construct the way that the city through its appropriate department install the sewer and water mains. The requirement that Fells-mere certify “that arrangements have been made with . . . city departments concerned for supplying to every lot in the subdivision . . . water and sanitary sewerage” does not destroy the force of the condition in regulation J. The certificate was assurance to the planning board and through it to the city as obligee on the bond that Fellsmere had done all that was called for by the requirements of the rules and practices of the department concerned to be done by it to cause water and sewerage to be supplied from the mains to the houses and that the department had indicated that it would act accordingly. But the planning board’s insistence that it have this assurance, as a condition of the approval of the subdivision plan, does not show that it was not fundamental to Fellsmere’s obligation to construct the way that the city construct the water and sewer mains.
Exceptions overruled.