Woodward v. City of Boston

Morton, J. The contract upon which the rights of the parties depend is contained in the advertisement of sale, which is as follows : “ June 9, 1869. Sale of city property. By order of the superintendent of public lands. This day at 4 o’clock, on the premises, will be sold for cash down the large two-story wooden building standing on the south corner of Dover Street Bridge and Harrison Avenue. It is about 15 by 170 feet long, to be removed in five days from day of sale. Also one two-story wooden building, Ho. 418 Harrison Avenue, to be removed immediately.” The auctioneer had no authority to sell upon any other terms than those stated in the advertisement, and it is not shown that [85] he did so. There is no proof that his statement at the sale, that the building was suited for tenement purposes and could be removed for that end, was intended or understood to vary the terms of the printed advertisement. It was a statement of his opinion, and cannot be construed as an implied guaranty that the proper authorities would grant a permit to remove the building through the public streets. Regarding the advertisement, then, as expressing the contract of the parties, the reasonable construction of it is, that the first named building was sold to the plaintiffs upon the condition that they should remove it in five days from the day of sale. If this had been a sale by a private individual it would be entirely clear that the buyer took the risk of being able to remove it without tearing it down; that upon his failure to remove it, according to the condition of the sale, the seller might treat the contract as broken and resell it, and that no action could be maintained against him either for a conversion or for damages for a breach of the contract. The principle is the same in this case. The city of Boston was the seller, but like an individual proprietor it would be liable to the plaintiffs only upon the ground of an express or implied stipulation or guaranty that they should receive a permit to remove the building as a whole. There is no express stipulation of this character, and we see no principle upon which such a stipulation can be annexed to the contract by implication. By the ordinances of the city of Boston, which are presumed to be known to both parties, the committee on public lands, by whom this sale was made, have the care and management of the lands belonging to the city, so far as relates to the improvement, Hale and disposal of the same, while the right to grant permission to remove buildings through the public streets is vested exclusively in the board of aldermen. Laws & Ordinances of 1869, 424, 628. The committee on public lands had no right to grant such permission to the plaintiffs ; there is nothing in this case to show that it undertook to do so, or to stipulate as a part cf the terms of sale, that the board of aldermen should do so, and we are of opinion that the law does not imply such a stipulation from the nature of the contract and the situation of the parties. In the sale of this building the city acted, in its capacity as a proprietor, in the management of property held fpr its profit and [86] advantage as a corporation, and as to it, has substantially the same rights and liabilities as a private individual. But in the maintenance and care of the public streets the board of aldermen act in a public capacity, in the discharge of duties imposed by the legislature for the public benefit. This distinction is well established. Oliver v. Worcester, 102 Mass. 489. No stipulation can be implied from a sale by the city of its private property, any more than in the case of a sale by an individual, that the public officers who by law have the charge of the streets shall grant a license to obstruct them. The same considerations apply to the sale of the other building named in the advertisement. It follows that as the plaintiffs cannot recover for either of said buildings for a breach of the contract of sale, there must be, according to the terms of the report, Judgment for the defendant.