171 Mass. 171 | Mass. | 1898
The defendants’ intestate, an attorney and counsellor at law, agreed with the plaintiff for a valuable consideration to preserve the plaintiff’s rights and to protect his interests .in reference to the taking of a strip of land by the town of Framingham for the construction of a sewer, and the plaintiff intrusted the business to him. He allowed more than two years to elapse after the taking without bringing a suit or taking any measures to obtain damages for the plaintiff, whereby, as the plaintiff alleges, the right to recover damages from the town was lost. This action was brought to recover damages for the breach of the contract to protect the plaintiff’s interests.
The town was acting under the St. 1887, c. 403. On the 20th day of February, 1888, at a meeting duly called, it had voted to accept the act. In the same year it employed contractors and laid a sewer through the plaintiff’s land, which it fully completed in the summer of 1889. Apparently it adopted and completed a system of sewerage ' under the authority of the statute. It had complied with § 2 of the statute, which provides that no act shall be done in the construction of a sewer
Three questions are presented by the bill of exceptions. First, Was there such a taking of the plaintiff’s land by the town of Framingham as gave him a right to recover damages therefor? Secondly, Is there any evidence that the plaintiff suffered damage from the neglect of the defendants’ intestate to prosecute his claim, inasmuch as he has not attempted to bring a suit for the taking of his land after the expiration of two years? Thirdly, Is the release of June 29, 1896, a bar to the plaintiff’s claim ?
1. The defendants’ objection to the validity of the taking is that the town could not delegate to its selectmen or to a committee the determination of what land should be taken. If we assume that the town could not, in the .first instance, delegate to the selectmen the right to bind the town by a taking for the construction of a sewer whose location had not been determined by a vote of the town, it does not invalidate the taking in the present case. We find here that the town had adopted its system of sewers, had obtained an approval of the location thereof from the State board of health, and had completed the construction of the sewer before it made a valid taking of the land. Having a system of sewers constructed, it voted to take land for it, and delegated to the selectmen the determination of the question what “land, water rights, rights of way, and easements” were necessary for it. This presented merely a question of detail, and we are not prepared to say that the town could not delegate the decision of it to its selectmen. However this may be, the selectmen made the taking in the name of the town, assuming that they were duly authorized so to do, and the case shows ample evidence that the town ratified their action. This ratification need not be by a formal vote. Fisher v. Attleborough School District, 4 Cush. 494. Lynch v. Forbes, 161 Mass. 302, 309. The plaintiff acquired a right to recover damages for the taking.
2. It is contended that no damage on account of a breach of contract is shown, because it does not appear that the town would not have waived its right to object that the suit was not seasonably brought if the plaintiff had filed his petition after the
3. The release subsequently executed by the plaintiff to the town is not a bar to this action. After the loss of his right to maintain an action, he properly might make the best arrangement with the town that he could. If he was able to obtain by an adjustment or compromise something to diminish his loss, the jury should take it into account, and they are presumed to have taken it into account in assessing the damages.
The facts of this case show no right of subrogation in the defendants.
Exceptions overruled.