339 Mass. 160 | Mass. | 1959
This is a bill in equity by Kent, the owner of a tract of land in Barnstable, against the commissioners
Prior to May 9, 1949, Kent had been developing his land for house lots by constructing streets and doing “further work to complete a real estate development.” On that date, he “proposed to the . . . board that it supply him at . . . [his] expense . . . water in connection with his development.” Kent, a “manufacturer’s agent dealing in plumbing supply specialties,” agreed to purchase pipe and fittings then in short supply and did so. He was reimbursed for this expense.
After the pipe and accessories had been delivered to Kent, the commissioners told him that “the public water system would not be connected with the system to be constructed” unless Kent “would give to the . . . fire district an easement . . . through the ways” in the real estate development and would execute the guaranty agreement. On May 9, 1949, when he was represented by an attorney, Kent conveyed the desired easement and also executed the guaranty agreement. The guaranty agreement consisted (a) of an “application for water service from the . . . district which will include the installation and maintenance of an extension of its water mains” in and within Kent’s development,
On the strength of this guaranty the district extended the water supply to Kent’s development. It has fully performed its obligations. Kent for seven years made payment in accordance with his guaranty agreement. He has now sold all but two of his lots and seeks to set aside the guaranty, alleging that its execution was compelled by duress on the part of the commissioners and that their acts were beyond their authority. Kent “is an experienced and successful business man” and “executed the agreement of May 9, 1949, knowing full well its import and the resulting cost to him.” The commissioners in their answer set up the defence of loches.
1. The exhibits referred to in the certificate of September 29, 1958, with the exception of the instrument granting an easement to the fire district and the guaranty agreement, are not mentioned in the judge’s report of material facts. The easement is adequately described in the report. The guaranty agreement is sufficiently established by the pleadings. The other exhibits are not properly before us because not expressly incorporated by reference in the report of material facts. As the certificate was executed two weeks after the adoption of the judge’s findings as his report of material facts, we do not construe the two separate documents as intended, in effect, to be one document. Cf. Clarke v. Board of Appeals of Nahant, 338 Mass. 473, 475. The certificate (in the absence of any statement to
2. The mutually consistent findings contained in the report of material facts by the trial judge are to be taken as true in the absence of the evidence. Harpel v. Craig, 327 Mass. 229, 232. Rothenberg v. Boston Housing Authy. 335 Mass. 597, 599-600. They amply justify the conclusion that Kent cannot prevail in this equitable proceeding because of loches. Kent’s contention, that the commissioners had no statutory authority
Kent knew in 1949 all the facts that could lead him to think that the guaranty agreement might be improper. If Kent then had moved promptly to protest the requirement of a guaranty, the commissioners (if convinced that there was any merit in Kent’s contention) for the district’s own benefit might reasonably have been able to delay the substantial expense of the extension of the water system, or they might have adjusted the rate structure in a manner which would appropriately have distributed the expense. At this late date, the commissioners would be unable to adopt these
There is no finding of facts which requires or permits the conclusion that Kent acted under duress in 1949 in executing the guaranty.
Since the final decree could properly be entered on the basis of the facts found by the judge, the decree is to be affirmed. The district is to have costs of this appeal.
So ordered.
The suit should have been against the district. An amendment may be allowed for this purpose, on motion of the commissioners, even though the point is not now raised. See Board of Health of Woburn v. Sousa, 338 Mass. 547, 548.
It is unnecessary for us toconsider whether such authority exists (a) under St. 1926, c. 109, § 2, which gives to the fire district authority to “make contracts for . . . water service . . . and for any other thing that may lawfully be done by said district,” or (b) under general statutory provisions applicable to such districts or by assimilation to the powers of town and other municipal or governmental entities. See Seaver v. Onset Fire Dist. 282 Mass. 209, 213; Hurlburt v. Great Barrington, 300 Mass. 524, 526-527; Rhyne, Municipal Law, 6-7, 70. Cf. G. L. c. 40, § 4, as from time to time amended.