211 F. 349 | D. Mass. | 1914
“If tlie parties choose to make special contracts with commissioners in regard to their compensation, these contracts are enforceable.” Knowlton, C. J., Gloucester Water Supply Co. v. Gloucester, 185 Mass, at page 537, 70 N. E. 1015.
By the act of 1899 (which was passed while the matter was pending before the commissioners), it was provided that the compensation of
“The case is to stand for hearing on the amount to which the petitioner is entitled by its payment of the costs charged by the commissioners.” 179 Mass. 384, 60 N. E. 982.
Their bill having been paid, the commissioners were not concerned in the matter of apportionment. The payment of $25,000 is said by the plaintiff to have been treated by the commissioners, “not as a final payment from a debtor, but as an advance.” (Sup. Brief for Plaintiff, p. 8.) I do not so -regard it, except perhaps to the extent to which the amount charged might thereafter be held excessive. The suggestion in the opinion of the Supreme Judicial Court (185 Mass. 537, 70 N. E. 1015) does not seem to me to preclude the view which I have taken. It is also said for the plaintiff that:
“The commissioners could elect whether to treat the county or the parties as their debtor, and if they wished to hold the parties they must discharge the county by repaying what it had paid.” (Sup. Brief for Plaintiff, p. 11.)
As to the reasonableness of the amount charged, namely, $27,000: At the incomplete hearing before Mr. Justice Loring evidence was submitted that such amount was reasonable. Evidence to the same effect is offered in the agreed facts; and I admit it. No witness ever testified that the sum charged by the commissioners was unreasonably high; .and no such evidence is now offered. The absence of it is significant. While the amount charged seems large, an examination of the commissioners’ bills contained in Exhibit A shows that a great deal of work was done. Upon the record, and in the absence of evidence to the •contrary, said amount appears to have been reasonable; and I so find.
The -plaintiff now contends that because the second decree was reversed by the court in banc, though upon another point in it, that part of it which set aside the first decree failed, that the first decree has therefore not been legally revoked, is now,in full force, and conclusively adjudicates, as between this plaintiff and this defendant, that the total sum which he was entitled to receive for his services as commissioner was $2,625, instead of $8,500, which he has in fact received.
The plaintiff’s case upon thi§ important point seems to me to -be technical and unmeritorious. In fact, Mr. Justice Loring never did determine the amount of reasonable compensation. He has said so himself.
’ “I allowed compensation to the commissioners to be paid by the county of Essex on the statement which was made to me that if that allowance was made the whole matter would be taken care of by the parties to the suit I am now informed that the statement was not authorized by the defendant.
“•This allowance, having been made by me under a misapprehension, may be set aside if the plaintiff elects to refund to the county treasury the money received by it.” (Exhibit A, page 2.)
“These commissioners were officers of the court appointed under a special statute, and they were not, by virtue of their appointment, in contractual relations with either of the parties. The most that they could ultimately expect under the existing practice was that the court, by proper orders if necessary, would make provisions for their reasonable compensation. If no statute were passed, they might expect that this compensation would come' from the parties under an order of the court.” Knowlton, C. J., Gloucester Water Supply Co. v. Gloucester, supra.
There was no necessity for the plaintiff to pay the..$25,000 when it did so; it then raised no objection to the amount of the fees and made the payment voluntarily; that amount was within the control of the court appointing the commissioners; had the plaintiff desired, it could have applied to the court- for orders, directing the commissioners to submit or to file their report, and settling their compensation. Mr. Norman, acting for the plaintiff, undoubtedly supposed, at the time when the payment was made, that the practice in the Newburyport case was to be followed. He assumed that the commissioners had power to fix their fées, was very keen to see the report, and made the payment out of impulsive curiosity, and, as his counsel put it to him, on his own responsibility for the consequences, rather than under any duress or coercion.
Assuming that there was a mistake of fact, it is not of such character as to give the plaintiff the right to recover in this action. To allow such recovery would deprive the defendánt of about two-thirds of his just pay for work done by him; for he now has no means of re-'
As the broad grounds above stated are sufficient to dispose of the matter, there is no necessity for me to pass on the questions of estoppel, nor to decide whether the plaintiff’s conduct in not refunding the money received from the county, nor prosecuting thé-suit against the city„precludes it from maintaining this action.
In accordance with the views above stated,. I understand that I have dealt with the requests of the parties for rulings, which may be referred to in connection herewith, as follows:
Of the plaintiff’s requests I have refused the first eight, the thirteenth, the fourteenth, and the “request for finding of fact,” which I have numbered 15. I regard it as unnecessary to pass upon the ninth, tenth, eleventh, and twelfth of the plaintiff’s requests.
Of the defendant’s requests I have refused the first, because I do not think it states the actual contract exactly as I have found it to be. The second and third are given, and the fourth is given as modified by adding “'and which would entitle the plaintiff to recover herein.” Of the further findings of facts requested by the defendant 'in its briefs in reply, I give 3 and 13. The fourteenth I regard as. immaterial. Of the rulings of law requested by the defendant I give 1, substituting for the word “implied” the word “actual” or “tacit.” I give 2, 3, and 7. The others I regard it as unnecessary to pass upon.
Judgment for defendant.