Madden v. City of Boston

Knowlton, J. In the view which we take of this case, many of the grounds of defence relied on by the defendant, and of the questions of law discussed at the argument, need not be considered. If we assume in favor of the plaintiff, without deciding, [356] that the persons acting as managers or trustees of the Franklin Fund held by the city of Boston, were, at the time of the alleged contract, empowered to bind the city by a written contract for the purchase of land for a trades school, we come to the question whether they made a contract with the plaintiff for the city, as averred in the declaration. The managers or trustees having advertised for proposals to furnish a suitable lot of land in the city of Boston, “ to be for the purpose of erecting thereon a ‘ Franklin Trades School,’ ” received among many others the following: “ Boston, May 16, 1895. To the Trustees of the Franklin Fund, Boston, Mass. Gentlemen, — The undersigned respectfully submits to you for consideration a lot of land which in my judgment is the most available as regards location for a site for the Trades School. There is 500,000 feet in the whole lot. You, however, can purchase any amount of feet as you may see fit. The price per foot to be 40/. Enclose plan herewith. Respectfully yours, H. J. Jaquith.” In making this proposal Jaquith was acting as an agent of the plaintiff. At a previous meeting it had been unanimously voted by the managers as follows: “ That no selection of a site be made unless such selection shall receive at least eight votes of the Board of Trustees.” After a consideration of these proposals and the elimination of all but four of them, a vote of the managers was taken at a meeting held on June 29, 1895, by which each member was to express his preference. After these preferences were made known, it was unanimously voted as follows, viz.: “ That the Parker Hill estate, five acres, having received eight votes, be chosen as the site of the proposed Franklin Trades School.” The estate referred to in the above letter of Jaquith was the Parker Hill estate, but it contained more than ten acres. On the plan accompanying the letter cer-, tain lines were drawn in reference to the offer to sell a part of the lot, indicating the part which the plaintiff and Jaquith thought desirable for the use of the managers, but no survey of it had been made, and its area was not known. The five acres referred to in the vote were five acres in that part of the lot indicated by these lines. It was then unanimously voted “ that the chairman request the City Engineer to make a plan showing five acres of said Parker Hill lot on the northwest corner of [357] said lot, according to the plan filed.” At that time Alpheus Sanford was chairman of the board of aldermen and chairman of the managers of the Franklin Fund. Sanford made no request under this vote, but afterwards one O’Brien, at the request of the plaintiff, and after indicating his intention to Sanford, and with the assent of Sanford, obtained from a surveyor employed in the office of the city engineer a plan which was made under the direction of O’Brien; and was exhibited by O’Brien to Sanford and to several other members of the board of managers, and no objection was made by any of them to the plan. This plan shows the land described in the plaintiff’s declaration. At a meeting of the managers held on December 19, 1895, a vote was passed as follows: “ Ordered, that Alpheus Sanford be authorized in behalf of the Board of Trustees of the Franklin Fund to purchase on terms stated in bid of H. J. Jaquith, filed May 16, 1895, five acres of the land offered for sale to the Board by said Jaquith, the site having been selected by this Board at a meeting held'June 29,1895; and it is further ordered that said Sanford is hereby authorized to make the necessary draft on the city treasurer for the purchase of said land according to the terms of said bid.” On December 20, 1895, a deed was prepared under the supervision of the plaintiff, which purported to convey from the plaintiff to the “ Trustees of Benjamin Franklin Fund,” the land described in the declaration; but the deed never was signed by the plaintiff or his wife. It afterwards appeared that the city treasurer, in whose hands was the money belonging to the fund, declined to recognize this vote or the previous votes for the erection of the Trades School as valid, and said that he should decline to pay any draft drawn .by Sanford in accordance with this vote. The plaintiff said to Sanford that he and his wife were ready to execute this deed, or any other proper deed to convey the land referred to in the deed, or any other five-acre lot out of the land described in the original plan. Sanford then told the plaintiff that the managers would not proceed further under the vote, and that the transaction was at an end. Within a few days Sanford reported this conversation to the managers, who took no action thereon until, on December 20, 1898, they passed a vote rescinding the vote of December 19, 1895, and the vote of December 28, 1893, pro [358] viding for the erection of a Trades School, on which the later vote was founded. The question- before us is whether the vote of December 19, 1895, purports to be a binding contract of purchase by the managers of the fund, or merely a vote under the authority of which a purchase was to be made. Looking first at the form of the vote, it seems to be no more than an expression of a determination to buy, and an authorization to an agent to make the purchase. It contains no words of present purchase. It does not assume the form of a contract. It is not addressed to the landowner, and does not even mention his name. Jaquith, the owner’s agent, is referred to only for the purpose of stating what land is to be bought and the terms upon which the purchase is authorized. It purports to be for the guidance of the board of managers and their agent. They were not a municipal corporation whose doings must be shown by public records; but they were managers or trustees acting under the will of Benjamin Franklin. If we look at the substance of the vote, it does not purport to leave the landowner with a claim to be collected by him from a public treasury, but it provides for a payment to be made by their agent from a fund which had been paid over to the city treasurer for a special purpose, by the treasurer of the Franklin Fund, under the vote of December 28, 1893. Giving authority “ to make the necessary draft . . . for the purchase of said land,” looks to future action, and seems to imply a purchase to be made, rather than itself to be the conclusion of a purchase. Examining the evidence in reference to the property to be bought, we have the same and additional indications of a provision for a contract, as distinguished from a contract completed. The vote of June 29,1895, selecting the site, went no further in designating the land than to determine that the quantity was to be five acres on the northwest corner of the lot, according to the plan filed. That plan did not show the extent nor the boundaries of the five acres. The exact location of the land remained to be determined. The managers, by vote on that day, provided a method for determining it. On December 19, the date of the vote relied on, that method had not been pursued, and this vote refers back to the vote selecting the site. So far as action of the [359] board is concerned, the location and boundaries of the five acres remained as indefinite on this latest date as on June 29. The directions to Sanford to request the city engineer to make a plan remained in full force, and the fact that O’Brien, representing the plaintiff, had procured a plan from a subordinate in the office of the city engineer, and that Sanford and certain other members of the board who had seen it had not objected to it, did not deprive Sanford of his right, or relieve him of his duty, to obtain from the city engineer a plan, which might or might not correspond with that made by the subordinate. On obtaining the plan referred to in the request to him, he naturally would be governed by it in executing the authority of December 19. That the managers and Sanford were not bound by the plan of the subordinate was recognized by the plaintiff when he offered a deed of the five acres shown on that plan, “ or of any other five-acre lot forming any part of that portion of Parker Hill estate described in Exhibit 1,” which exhibit is the plan annexed to Jaquith’s letter. The votes relied on by the plaintiff do not sufficiently designate the boundaries of the lot to answer the requirements of the statute of frauds. Sherer v. Trowbridge, 135 Mass. 500. This fact alone is an important, and almost conclusive indication that the vote of December 19 was intended as a preliminary to a contract, instead of a contract binding from that time. Viewing this vote in all its aspects, we have no hesitation in interpreting it as merely an authorization and implied direction to Sanford, and not as the completion of a contract. The facts of the case differ materially from those of McManus v. Boston, 171 Mass. 152. We think it very plain that the votes of June 29 were not passed as a part of a contract, and we do not deem it necessary to consider them more particularly. Exceptions overruled.