260 Mass. 255 | Mass. | 1927
This is a suit in equity brought by ten taxpayers of the city of Boston, under G. L. c. 40, § 53, to restrain further payments to the defendant J. C. Coleman and Sons Company pursuant to its contract with the city, and to compel that company to repay to the city all sums found to have been paid in excess of what is lawfully due under said contract. The contract in question was executed July 17, 1922, and approved by the mayor July 21, 1922. It was for “completing the Columbus Park Improvement, South Boston, according to the Plans of the Park Department, dated June 24, 1922, entitled ‘ Columbus Park Improvement, South Boston,’ and signed John J. Murphy, Engineer,” by filling in the park area, covering about seventy-five acres, up to finished grades as indicated on the contract plans.
In 1916, in order to render the park healthful and desirable as a recreation resort, the city commenced to improve a section of the shore front by eliminating offensive and unsanitary conditions then existing, due to the exposure of the mud flats and sewage at low tide. This project, referred to as the “Strandway Improvement,” had been authorized by St. 1914, c. 240. A contract was entered into with the New York State Dredging Company, the general terms of which called for an extension of the existing shore line and the filling in of this territory with what was termed “hydraulic fill,” a material of a consistency of about eighty per cent liquid and twenty per cent solid. The dredging company ceased work in 1918 because of the requisition of its hydraulic dredge by the United States Government. Work was not resumed until 1922, when the contract with the Coleman company was made. Plans,
The contract with the dredging company contained the following reference to the filling: “Measurements and estimates of the Commissioner will be calculated from the contours of the present surface and the figures of the elevations of the proposed finished surface; and the contractor will be paid only for the cubical contents determined from these figures. Any material required on account of settlement of the filling or of the underlying material is to be put in place by the contractor at his own expense.” The contract with the Coleman company, in this respect, provided in item 2 (g) of § 4 of the specifications that “the quantity to be paid for shall be determined by measurement of the space filled . . . after the material has been levelled off and rolled.” Items 3 (d) and 4 (d) of § 4 contained similar provisions. An amendment made on August 8, 1924, provided that the quantity of filling was to be determined by the engineer “as measured in the vehicles . . . less a deduction of 10%, and less the amount of excavated material used for filling . . . Art. 8 of the contract provided for monthly payments to the contractor based on “the value of materials owned and placed in permanent position on the work by the Contractor,” with certain deductions in the final settlement, referred to in art. 9, which settlement was to be made sixty-one days after the work was completed.
It is the contention of the plaintiffs that, under the terms of the original contract with the Coleman company, the latter was to be paid for the material above the levels of 1922 as measured in place; that so measured, the contractor
Item 4 (a) of § 4 of the contract provided in part that “Loam shall be six (6) inches in depth on Playground and eighteen (18) inches in depth for planting areas unless otherwise directed by the Engineer.” The Coleman company began work under the contract and' proceeded to deliver fill and loam upon the land. The city maintained in daily attendance an inspector with assistants whose duty it was to keep a correct record of the number of cubic yards of filling delivered. The number contained in each motor truck was calculated and a record thereof kept. The chief inspector for the city estimated that five yards was a fair general average per truck, basing this estimate upon the known dimensions of each and the point to which it was filled when he examined it. The master states that he could not find that the five yard estimate was unreasonable. He found that the figures so kept by the city inspector showed that the contractor had delivered 300,476 cubic yards of fill up to May, 1924, and 21,126.5 cubic yards since that date; that 91,028 cubic yards of loam were delivered up to May, 1924, and 504 cubic yards since that time. The city has paid the Coleman company $551,547.38, and is withholding, under the terms of the contract, $29,028.82.
It appears that, owing to the soft and unstable character of the substance upon which the fill and loam were to be placed, a large portion of such fill and loam had settled below the level of the land as that level existed in 1922, when the contract was entered into. Johnson and Watson, a firm of engineers employed originally by the park com
The master attributed the difference in the estimates to the failure of these engineers to take into account a mixed soil which contained loam existing below the 1922 levels or to the fact that the loam was subject to erosion. He found that their estimate of the amount of material below the 1922 levels was as nearly accurate as it was possible to determine, and accepted their figure of 121,852 cubic yards as that amount. There was no other evidence of the amount of material delivered which had settled below those levels. Although the testimony of several engineers before the master apparently was conflicting, it appears that nearly all the totals estimated by them were in the vicinity of 300,000 cubic yards of material delivered, if Johnson and Watson’s estimate of material below the 1922 levels is added to their estimate above those levels. The master found that the plaintiffs failed to show that the Coleman company had not delivered the number of cubic yards of fill and loam allowed by the city. He found that, by deducting from the total number of cubic yards of fill, as estimated by the city
The “Thirteenth Estimate” which was the last estimate for payment to be made by the park department of the city, and was dated May 22, 1924, is set out in full in the master’s report. On the basis of this estimate, it appears that the city has paid all sums due except five per cent of the cost of 260,000 cubic yards of fill and 91,500 cubic yards of loam, which, under the terms of the contract, has been withheld by it.
At the outset the question presented is, whether, under the terms of the original contract, the risk of settlement and loss of material by erosion should be borne by the city or by the Coleman company. The contract provided, in substance, as to the various kinds of material to be delivered, that “the quantity . . . shall be determined by measurement of the space filled . . . after the material has been levelled off and rolled.” It is agreed that the contractor was required to deliver and spread fill and loam up to the grade shown on the contract plans. The plaintiffs contend that “space filled” means space filled above the 1922 levels. It is the contention of the Coleman company that “space filled” means all the space filled, whether above or below the 1922 levels, because such space must be filled in order to raise the surface to the desired grade as shown on the contract plans. The provision in regard to measurement according to space filled when leveled and rolled well may have been inserted in the contract merely to relieve the city from paying for material lost by shrinkage due to
If the words used in the contract are plain and free from ambiguity, they must be construed in their usual and ordinary sense; but if they are susceptible of different interpretations and there is doubt, obscurity or uncertainty as to what the parties intended, resort may be had not only to the terms of the contract itself, but also to the circumstances underlying its making. New York Central Railroad v. Stoneman, 233 Mass. 258, 262. Snider v. Deban, 249 Mass. 59. Nelson v. Hamlin, 258 Mass. 331, 340. It is a well settled rule of construction that if the meaning of a written instrument is doubtful and cannot be determined from its language, the instrument will be construed most strongly against the party using the uncertain language and. in favor of the one who has been misled by it. Barney v. Newcomb, 9 Cush. 46, 56. New York Central Railroad v. Stoneman, supra. In the case at bar the words “space filled” in common acceptance can only mean making an empty place full, and, as applied to the contract read in the light of all the circumstances, mean that the contractor shall be paid a sum of money which shall be measured by the space filled, rolled off and levelled above the levels of 1922. That such construction of these words represents the intention of the parties to the contract is clear from the fact that before the contract was executed the city had prepared plans showing what purported to be the levels at various points in the park in 1922, and they were made part of the contract. These drawings, plans and levels were wholly unnecessary if the words “space filled” are to be so construed that the defendant J. O. Coleman and Sons Company is to be paid under the contract for all material it has delivered at the park whether the filling remains above the 1922 levels or entirely disappears beneath those levels.
There is no' patent or latent ambiguity in the quoted terms of the contract, so far as they relate to measurements and price to be paid for the work done, which permits the introduction of paroi evidence. The risk of loss because a part or even the whole of the material placed by the contractor
On August 8, 1924, after an investigation of this contract by the finance commission of the city of Boston had begun, the contract was amended by striking out the provisions for payments in the amount of filling and loam measured in place, and inserting therefor provisions that the earth and gravel filling and the loam should be paid for on the basis of the amount delivered as measured in the vehicles less a deduction of ten per cent. This amendment was approved by the defendant mayor, and purports and was intended to apply to filling and payments already completed as well as to future filling and payments. The performance of the contract was incomplete and the work under it was still in progress when this bill and the answers of the defendants thereto were filed. This amendment changed the contract of 1922 in at least the material respects which follow. It eliminated all contention as to whether the city or the contractor had to bear the risk of settlement, and as a legal consequence placed the risks of settlement and erosion from the inception of the contract until its completion upon the city of Boston; and it changed fundamentally the nature and method of ascertaining the amount to be paid the contractor from the rule of the contract to the method prescribed by the amendment.
The facts alleged in the answers and found, in substance, by the master show that the contractor, within its legal right, had refused before August 8, 1924, the date of the amendment, to proceed and complete its contract because
We assume, without discussion, that the above facts, which must be taken to be true, furnish a sufficient legal consideration for the amended agreement. Torrey v. Adams, 254 Mass. 22, 26. The contract thus made, however, was illegal and void because it did not conform to the requirements of St. 1890, c. 418, § 6, and St. 1909, c. 486, § 30, in reference to advertising for proposals. Morse v. Boston, 253 Mass. 247. As the amendment to the contract was void and the risks of settlement and of erosion upon the contractor, it is plain the payment to it for material below the levels shown on the 1922 plan was illegal as to the material furnished both before and after the execution of the amendment. The amount of the overpayment need not be determined upon this petition.
G. L. c. 40, § 53, looks to the prevention of expenditures and the incurring of obligations which a town or city has no legal or constitutional right to make or enter into. It does not authorize the correction of wrongs wholly executed and completed; Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 260; and except in extraordinary conditions, of which Frost v. Belmont, 6 Allen, 152, and Welch v. Emerson, 206 Mass. 129, are illustrations, the statute does not authorize an order for the return of past illegal payments. Fuller v. Trustees of Deerfield Academy, supra.
The engineer did not. have authority verbally to order or authorize the contractor to add more loam over areas which had been brought up to grade and had then settled. The contract provision on loam, item 4 (a) reads: “Loam shall be six (6) inches in depth on Playground and eighteen (18)'
It results that, in the opinion of a majority of the court, a decree should be entered dismissing the bill as against all the defendants other than the city of Boston and the J. C. Coleman and Sons Company; and perpetually enjoining the city of Boston and all officers and agents of the city of Boston from paying directly or indirectly to the defendant J. C. Coleman and Sons Company any further sums of money under the contract of July 17, 1922, as purported to have been amended by the agreement of August 8, 1924.
Decree accordingly.