219 Mass. 580 | Mass. | 1914
This is an action to recover damages for breach of a contract alleged to have been made in writing between the plaintiff and the defendant for the collection and disposal of garbage in the defendant city for five years from May 1, 1909.
1. The defendant’s first contention is that the contract was invalid because not executed as required by law. It was executed in the name of the defendant by the mayor and does not bear the
2. It further is urged that a contract for the disposal of garbage must be executed by the board of health in order to be valid. R. L. c. 25, § 14, authorizes the making of such contracts by towns, “by the selectmen, board of health or other officers having charge thereof.” It is enacted by R. L. c. 26, § 2, that chapter 25 as to towns, “shall apply to cities so far as consistent with the general or special laws relative thereto.” As there is no special provision in the Fall River charter concerning garbage disposal, the argument is that by force of the general law the board of health, or the board of aldermen as the city municipal board with powers corresponding broadly to those of selectmen of towns, alone are empowered to make such a contract. There is force in this argument; but it does not overcome countervailing considerations.
The charter of Fall River is a special law relative to that city. Its terms must govern, if in any respect in conflict with R. L. c. 25, § 14. The charter provides in § 7 for a division of the administration of all its affairs between a legislative department and “an executive department, which shall consist of one officer, the mayor,” and in § 19 that “except as herein otherwise provided
It follows that the bald provision of R. L. c. 25, § 14, clothing-the selectmen and boards of health of towns with power to make contracts respecting garbage disposal, is not consistent with the extensive authority vested in the mayor of Fall River by its charter.. That charter by § 15 empowered the board of aldermen to make ordinances “for all purposes for which towns and cities may make-by-laws and ordinances under general laws.” R. L. c. 25, § 23, authorizes the making of by-laws among other matters “for directing and managing their prudential affairs.” It was said by Chief Justice Shaw in Willard v. Newburyport, 12 Pick. 227, at page 231, as to the meaning of the equivalent term "prudential concerns of a town” that "perhaps no better approximation to an exact description can be made, than to say that it embraces that large class-of miscellaneous subjects affecting the accommodation and convenience of the inhabitants, which have been placed under the municipal jurisdiction of towns, by statute or by usage.” There is no express provision in the Fall River charter as to the execution of contracts such as is found in St. 1893, c. 444, § 40, which was under consideration in Fiske v. Worcester, ante, 428.
While of course no ordinance can contravene a statute, in the
The facts are that the board of health of Fall River respecting the contract with the plaintiff took this action: They called for bids in writing to do the work of disposing of garbage according to detailed specifications. Several persons submitted bids, that of the plaintiff being the lowest. Thereupon, the board of health voted to accept and approve his bid and to “recommend that his Honor, the Mayor, enter into a contract with said Clarke at that price” and that thereafter in accordance therewith the contract in suit was made by the mayor. The proposal in writing by the plaintiff, accepted and approved by vote of the board of health duly entered on its records, if there had been no other legal requisite as to execution, would have constituted a contract. But as the charter and ordinance together required the execution of the contract by the mayor, the board of health performed its appropriate function in preparing and recommending to him the terms which it deemed demanded by public interests. There is nothing at variance with this result in Oliver v. Gale, 182 Mass. 39, and Commercial Wharf Corp. v. Boston, 208 Mass. 482,488, both somewhat relied upon by the defendant.
3. It is argued that the contract was invalid because it called
4. As the contract was legal and duly executed, the plaintiff is entitled to recover on the second count of his declaration for the percentages of payments already due but retained by the city under the terms of the contract while it was being performed.
5. The trial of this case lasted eight days and a large amount of testimony was introduced from about sixty witnesses. Once or twice during the trial the plaintiff offered evidence which was received by the judge “de bene.” Later it was stricken out and the jury instructed wholly to disregard it. No legal ground of exception here is disclosed. Whitney v. Bayley, 4 Allen, 173. It is assumed that in this ruling “de bene” was used not in the technical sense in which it occurs sometimes in statutes, (see 6 Encyc. Pl. & Pr. 625,) but as meaning conditionally or provisionally upon its connection with the matters on trial being later shown, or upon its competency or relevancy being made to appear at a subsequent stage. In a long trial of complicated issues, much must be left in this regard to the discretion of the presiding judge. Nevertheless, great caution ought to be exercised as the trial goes forward that evidence which can have at best only a remote bearing upon the points in controversy should not be admitted. The danger of an unconscious influence from evidence once received, although subsequently stricken out, is pointed out forcibly by Mr. Justice Hammond in Newman v. Newman, 211 Mass. 508. But it does not appear that there was any abuse of discretion or that anything was done which requires the sustaining of this exception. Commonwealth v. Johnson, 199 Mass. 55, 59.
Exceptions overruled.