Green v. City of Everett

Barker, J. The petitioners concede that incomplete negotiations for settlement of a controversy are not admissible in evidence, but contend that the evidence offered and rejected was of. a complete settlement of the controversy agreed to by both parties, and which after it had been agreed upon failed only from the refusal of the respondent to fulfil it. A view of the •facts shows that such was not the case. On September 21,1897, the petitioners’ lands were taken to widen a street, the taking being in proceedings under the betterment acts. In these proceedings the city authorities did not act under the provisions of St. 1884, c. 226, by making a written agreement with the petitioners that the city should assume any betterments to be assessed upon their land, they releasing their claim to damages, upon terms agreed upon between themselves and the authorities acting for the city in taking the land. On the contrary the taking was the usual one under the provisions [151] of law authorizing the assessment of betterments. It gave to the petitioners'a right to damages fixed at the value of their land taken before the widening, and it also gave to the city-authorities the power to assess betterments on the land of the petitioners which had not been taken for the widening. The petitioners filed their petition for damages on August 81, 1898. The city authorities exercised their power of assessing the betterments on September 18, 1899, imposing an assessment of $4,232.04, on the petitioners’ land. Before the making of this assessment, during the period from April 25, 1899, to June 13, 1899, the petitioners made a proposal to the council and board of aldermen to settle their claim for damages for $7,800 and an agreement to abate the betterments to be assessed upon their property. This proposal was accepted by the council and board of. aldermen, and the agreement was passed, over the mayor’s veto, by the board of aldermen on May 8, 1899, and by the common council on June 13,1899. Since that time the petitioners have been willing and have offered to settle according to the agreement, but the city government has neglected and refused to make the appropriation necessary to" carry it into effect, and matters were in this state when, upon the hearing of this petition at the March sitting of the year 1900, the petitioners offered to show their proposal and the action of the city government' upon it as evidence in support of their contention that, their damages by the taking were $12,000 or more. By the charter of the city of Everett the power to lay out streets is conferred upon the city council. St. 1892, c. 355, § 23. If the votes which followed the proposal accepted by the common council and board of aldermen on April 25, 1899, had been passed as.a part of the taking of the land, they might have constituted an agreement in writing under the provisions of St. 1884, c. 226, § 1, and so been binding upon the city. . See-Atkinson v. Newton, 169 Mass. 240. This would have been so notwithstanding the provisions of the city charter cited by the respondent, with reference to the making of contracts by the city council, making the mayor the chief executive officer of the city, and providing that no liability shall be incurred by or" in behalf of the' city until the city council has duly voted an appropriation sufficient to meet such liability. St. 1892, c. 355, §§ 21, 26, 33. [152] These sections were passed alio intuitu, and do not limit the powers of the city council in its jurisdiction to lay out, alter or widen ways under general laws. But the taking of the laud having been made without any such written agreement, no power was conferred by St. 1884, c. 226, to make the agreement nearly two years after the taking, and simply by way of settlement of a pending petition for land damages. Whether the proposal and votes constitute as the petitioners contend a completed settlement therefore depends upon the general powers of the city council and the limitations of their powers. One such limitation which disposes of the petitioners’ contention is that usually and aside from its power derived from St. 1884, c. 226, which as we have seen cannot be invoked in this case, the city council can incur no liability in behalf of the city unless the council has duly voted an appropriation sufficient to meet the liability. St. 1892, c. 355, § 33. See also § 26, and Brachett v. Boston, 157 Mass. 177. Therefore the common council and the board of alde'rmen had no authority to pass the votes of April 25, May 8, and June 13, 1899, and those votes and the proposal did not constitute a completed settlement, and evidence of them was rejected properly, under the ordinary rule excluding evidence of offers or attempts to compromise pending the litigation. • The other exception is to the exclusion of evidence of the amount of the betterment assessment. If the proposal and votes had been competent, perhaps this evidence would have been necessary to the proper understanding of the whole transaction. The offer and the votes having been rightly excluded no good reason can be urged for sustaining this exception. The .issue was simply the value on September 21,1897, before the taking, of certain lands, then adjoining a street in the city of Everett. No reason can be suggested for any lack of competent evidence upon such a question of value. Neither the value of the land taken nor that of the land assessed was an element in the making of the betterment assessment. If the making of the assessment had involved a valuation either of the land taken or of that assessed or of both, such valuations would be no more valuable for the purposes of such a case as was before the jury, than valuations made in the assessment of ordinary taxes. Exceptions overruled.