Winterport Water Co. v. Inhabitants of Winterport

Haskell, J. An action of covenant broken for not paying $258, a sum equal to the tax assessed against plaintiff in 1897. Plea, non est factum, which puts in issue the validity of the deed containing the covenant sued. On April 22, 1896, a town meeting was called, “To see if the town will vote to contract with the Winterport Water Company for not less than (20) twenty hydrants service, for not less than (20) twenty years, as per said Company’s proposal.” It was: “Voted to pay the sum of $1000 per year, for not less than 20 years hydrant service, for not less than 20 years as per said company’s proposal.” Thereupon the deed was executed by the parties, covenanting that defendant should pay the $1000 yearly rental and such further sum, each year, as shall equal the amount of tax, if any, assessed against defendant. The defendant contends that the covenant sued was not authorized by vote of the town. True, the vote is imperfect, and perhaps fatally so, were it not aided by the article in the warrant under which it was taken. That article is to see if the town would contract for twenty hydrants service, for twenty years, as per Water Company’s proposal. That proposal was in writing and read to the town, and upon its reading, the vote was passed. The proposal contained various articles, and the town may fairly be said to have adopted its provisions. The vote must have meant that, if anything. Surely, it could not have meant simply the payment of $1000 yearly rental without being secured the service carefully specified in the proposal. That was specific, and carefully worded, and has been embodied literally in the deed. All its provisions were proposed and must have been considered as .the pending question upon which the vote was taken. We think, [230] taking the whole proceeding together, that the town meant to, and, in words not so comprehensive as may be wished, did adopt the entire proposal. Other acts of the town, were they competent here, might strengthen this view, but, although they are in evidence, we do not think it best or necessary to consider them. At the same meeting, under an article to see if the town would choose and empower a committee to execute the deed in behalf of the town, such committee was chosen and so executed the deed. It is contended that the charter of defendant, Special Act 1895, c. 25, authorized defendant to contract for water supply, by its selectmen only, and not by a committee as here. Defendant town did not contract by a committee. It contracted itself, and authorized a committee to execute the contract in the name of the town. The subject matter of the contract was a municipal function, authorized by statute, that it might act upon directly, by vote, and cause its chosen agents to execute its action in its name. To be sure, the letter of the statute is “authorized, by its selectmen, to enter into contract, with said company for a supply of water.” One construction may be that the selectmen might negotiate and conclude such a contract, and execute it in behalf of the town. Under this construction, no other method could be adopted, for the selectmen alone are given the power, and no one else. But the better construction is, that the town itself may contract, and that it may execute its contract by the selectmen, if it pleases. The method is permissive, not exclusive. Suppose the selectmen be incapacitated by sickness, or a majority of them be absent, or refuse to act, shall the town be prohibited from the exercise of its function by mischance, misfortune or the perversity of its selectmen ? Shall the agent veto the act of his principal? It is more reasonable to say, that the town may act through the agency named, if it shall please, or by any agent that it may authorize for the purpose. The town is to act, not the selectmen, unless directed by the town to do so. The town did act, and voted the contract submitted to its meeting. Upon a proper article in its warrant, it chose a committee to execute the contract, in its name, that it had already adopted. This case resembles, in many particulars, Greorge v. School Dist. [231] in Mendon, 6 Met. 497. There the district voted to build a school house, and chose a committee to make a contract therefor according to a proposal submitted. The meeting adjourned to a future day. Meantime, another meeting was called and held, and the town voted to build upon a new plan then proposed, and chose a committee to make the contract, and it was held that the contract so made was valid, and also that it rescinded the former vote. See Nobleboro v. Clark, 68 Maine, 87; Haven v. Lowell, 5 Met. 35; Murdough v. Revere, 165 Mass. 109; Curtis v. City of Portland, 59 Maine, 483. Where the mode to contract, named in a statute is permissive merely, no good reason can be given why other modes may not be employed. If the mode be exclusive, that mode alone should be followed. One test is, to see if the act of the agent be ministerial only, for there he has no discretion, and is to merely carry into effect the will of his principal. If, however, he is to exercise judgment, so as to determine any rights of the principal, then his judgment is made an element in the transaction, and it cannot be consummated without it. In the case at bar, the town was authorized to contract for water. The contract was to be the town’s contract, made by it. The selectmen had no official voice in the matter. They were permitted to execute the will of the town, if ordered to do so. No reason has been given why another, chosen, should not act also. We think the contract valid. Defendant defaulted. Winterport vs. Winterport Water Company. Defendant Defaulted Emery, J., concurred in this case, but not in the first case.