City of Worcester v. Worcester & Holden Street Railway Co.

Knowlton, C. J. The exceptions in this case relate to a single item in the plaintiff’s account annexed, which is a charge of $3,500 for “ labor furnished, and materials furnished and actually used in making repairs and alterations on Grove Street in. Worcester as per contract.” On July 22,1901, the board of aldermen of Worcester granted a location to the defendant company for the construction of its railway. Among the “ terms, conditions and obligations ” imposed upon the defendant was a requirement that, “ if, in the construction of said tracks, it shall become necessary in the judgment of the city engineer of the city of Worcester, to widen the wrought part, change the grade, work to grade, or to make general or specific repairs upon the whole or any portion of said streets, such work as he may direct shall be done at the expense of the said company,” and another requirement that “ said company shall, at its own expense and cost, pave with block paving between the rails and tracks, and for a space eighteen inches outside thereof,” a certain part of the location, and shall “ maintain said pavements at all times in good order and repair,” etc. There is no dispute that the street commissioner of Worcester and the mayor, representing the plaintiff, and duly authorized officers of the corporation agreed that on a certain street to which this last requirement applied, it would be better for every one concerned to have macadam used instead of block paving outside the rails, and agreed that the city should do the work of macadamizing and the defendant corporation should pay for it a stipulated price, which the jury have found to be $3,500. The plaintiff did the work according to the agreement. The defendant contends that the contract is not binding upon it because the requirement of the board of aldermen was illegal, [230] because the parties, without authority, undertook by the contract to provide for a departure from this requirement of the aldermen, and because the city had no right to make such a contract. It is not necessary to consider the validity of the requirement. That part of it which provides that the defendant shall at all times maintain the pavement in good order and repair was doubtless unauthorized, after the enactment of the St. 1898, c. 578, § 13, (R. L. c. 112, § 7.) Springfield v. Springfield Street Railway, 182 Mass. 41. Notwithstanding this, there is much ground for contending that the first part of the requirement, as to the construction, was valid. Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294, 296. However that may be, there was work to be done on the street in which both the plaintiff and the defendant were interested, about which an order had been made by the board of aldermen, purporting to require the defendant to do the work. Under these circumstances the parties made the contract and the plaintiff performed its part of it. The city may be bound by such a contract. Brookfield v. Reed, 152 Mass. 568. Arlington v. Cutter, 114 Mass. 344. Bell v. Boston, 101 Mass. 506. It is not contended that the commissioner of streets and the mayor were not proper officers to represent the city in the transaction of the business. If that were disputed, the ratification of the contract, by bringing an action upon it, would be equivalent to original authority from the city. Melrose v. Hiland, 163 Mass. 303, 311. It is plain that the defendant may bind itself by such a contract affecting its interest, and it is conceded that the officers representing it in the agreement were properly authorized. The fact that this construction, which was thought to be the best for everybody concerned, is a departure from the order of the board of aldermen, does not affect the validity of the contract as between the parties to it. For these reasons the contract is binding upon the defendant. There are other grounds on which the plaintiff contends that this defence is not open to the defendant, namely, that its only answer is a general denial, (see Granger v. Ilsley, 2 Gray, 521; Suit v. Woodhall, 116 Mass. 547,) and that ultra vires cannot be set up as a defence to avoid payment to a corporation which [231] has executed such a contract. See Slater Woollen Co. v. Lamb, 143 Mass. 420; Nims v. Mount Sermon Boys’ School, 160 Mass. 177,179, 180. These contentions need not be considered. Exceptions overruled.