Averill v. City of Boston

Knowlton, C. J. These are actions-at law to recover in each case the amount of an award in favor of the plaintiffs, for the taking of land for a public street. Two of the cases relate to land taken for one street and the other relates to land taken for another street. One of the streets was laid out and ordered constructed on July 15, 1897, and the other on July 15, 1898. The land taken for each street was entered upon and the work of construction was begun on September 22, 1898. Apart from the contracts hereinafter referred to, the award in each case became payable on that day. R L. c. 48, § 13. Aspinwall v. Boston, 191 Mass. 441. Each of these actions was brought on December 28, 1905, and the defendant has answered, among other things, the statute of limitations. It is plain that the liability is of the kind that is barred under the general statute of limitations if no action is brought to enforce it within six years after the cause of action accrues. R L. c. 202, § 2. The only ground on which the plaintiffs seek to avoid the effect of this statute is the existence of two contracts, in the same general terms, one pertaining to each street, signed by the plaintiffs and others in one case and by the plaintiffs’ intestate and others in the other two cases, a copy of which is given in Aspinwall v. Boston, ubi supra. It was decided in the case last cited, upon facts that appear in these cases, that the contract was not binding upon the plaintiffs because the city failed completely to accept it by doing all that was to be done as a consideration for the promises contained in it. It was therefore held that the plaintiffs might recover the damages awarded for the taking of their land. That action was brought before the expiration of six years, and the statute of limitations was not applicable to it. [494] In Tappan v. Boston, heard at the same timé, both cases being considered in the same opinion, it was decided that the petitioners might have a writ of mandamus to compel the completion of the streets, and it was intimated that, inasmuch as the petitioners had elected to treat the contracts as binding upon both parties, the city might not be permitted hereafter to set up its own neglect to defeat the rights of the petitioners growing out of the respective contracts, even though the petitioners might have availed themselves of this neglect, and have treated the acts of the city as ineffectual to prevent them from collecting their damages. It is agreed in each of the present cases that the city has been ordered by a writ of mandamus to finish the construction of the streets before December 1,1906. The plaintiffs now seek to set up these contracts as binding upon them, so far as to postpone the time when the cause of action accrued and to relieve them from the bar of the statute of limitations, and to set them aside in those parts which purport still to postpone the collection of their damages until there can be a set-off of benefits. This they cannot do. If they elect to avail themselves of the contracts, waiving the city’s delay in the work of construction, they must abide by them in all their parts. If they elect to set them aside because the city has failed to do that which makes them binding, they must treat them as nullities. In the first place each writing was a mere offer, and it could be withdrawn at any time before it was acted upon in accordance with its terms. The city did not attempt to bind itself, and could not bind itself by an executory contract of this kind. Aspinwall v. Boston, ubi supra, and cases cited. The offer became binding only by the doing of the acts referred to, which were to furnish the consideration. Cottage Street Methodist Episcopal Church v. Kendall, 121 Mass. 528. Crocket v. Boston, 5 Cush. 182. Springfield v. Harris, 107 Mass. 532. It is not a bilateral contract, binding from the beginning, with a liability for a breach. If the city failed to act upon it so as to furnish the full consideration within a reasonable time, the plaintiffs might refuse to be bound by it. But in that event they could not retain the benefits of it, and use it to give themselves rights which otherwise they would not have in a future proceeding. Apart from the contracts, the plaintiffs’ claims are barred by [495] the statute of limitations. Each contract must be taken as a whole. If it is treated as of no effect because the consideration was not furnished, it cannot avail the plaintiffs to take the cases out of the statute of limitations. If it is relied upon by the plaintiffs to prevent their right of action from accruing, they must take the consequences of its provisions which forbid the maintenance of an action before the betterments are assessed. In each of the eases the entry must be Judgment for the defendant.