1. The evidence that the defendant and his companion matched the descriptions of two persons who at 12:45 A.M. had left the alley where the attempted break had been made, that they were unable to comply with the request of the arresting officers to produce a license or a registration for the car (which was being removed from the scene), that when the arresting officers radioed in the registration number of the car they received back a report that the car had not been reported stolen, and that when the arresting officers then radioed in the vehicle identification number of the car they received back a report that the car had been reported stolen (as in fact it had) from the Lower Basin, M.D.C., justified an inference that the police had probable cause to believe the car was stolen and constituted justification for entering it and taking it into custody. See Commonwealth v. Haefeli, 361 Mass. 271 , 281 (1972); Commonwealth v. Dupont, 2 Mass. App. Ct. 566 , 567-571 (1974). The alleged burglar tools were then in plain view, and their seizure was lawful. Commonwealth v. Appleby, 358 Mass. 407 , 411-412 (1970). Commonwealth v. Navarro, 2 Mass. App. Ct. 214 , 222 (1974). Commonwealth v. Pignone, 3 Mass. App. Ct. 403 , 410 (1975). Contrast Commonwealth v. Silva, 366 Mass. 402 , 409-410 (1974). For that reason it is not necessary to discuss the question whether the defendant would have had standing to challenge the validity of the entry into the car and the seizure of the tools if either had been unlawful. See United States v. Jeffers, 342 U.S. 48 (1951); Jones v. United States, 362 U.S. 257 (1960); Alderman v. United States, 394 U.S. 165 (1969); Brown v. United States, 411 U.S. 223 (1973); United States v. Lisk, 522 F.2d 228, 230 (7th Cir. 1975), cert. den. 423 U.S. 1078 (1976). 2. The portion of the judge's charge to which the defendant excepted was clarified by supplementary instructions to which the defendant made no further objection. He is "now in no position to contend that the further instructions were inadequate." Betty Corp. v. Commonwealth, 354 Mass. 312 , 321 (1968), and cases cited. 3. The statements by the defendant and his companion at the scene of the tow truck altercation were not objectionable; the questions asked by the police, although directed at the defendant and his companion, were investigatory only and were not custodial, and the Miranda warnings were not required. Commonwealth v. Valliere, 366 Mass. 479 , 486 (1974), and cases cited. 4. Having found preliminarily that there was evidence of a conspiracy, the judge correctly allowed the companion's statement as an admission by a coconspirator. Commonwealth v. Flynn, 362 Mass. 455 , 476-477 (1972), and cases cited. Commonwealth v. Dominico, 1 Mass. App. Ct. 693 , 717 (1974). Commonwealth v. Dussault, 2 Mass. App. Ct. 321 , 326 (1974). 5. The references by the police officer to the effect that the car was stolen and that the defendant had been so charged were, to whatever extent they were improper, rendered harmless by the judge's curative instructions.
In deciding the plaintiff's
appeal from the judgment upholding the validity of the general bid submitted by the defendant Salem Engineering & Construction Corp. (Salem) and of the contract which Salem entered into with the defendant school district on the basis of that bid, we need not reach the question whether the trial judge properly construed G. L. c. 149, Section 44H (as amended through St. 1965, c. 836, Sections 4-6), as we are of the opinion that the judgment was correct for a narrower reason. Whatever might have been the effect on Salem of the district's decision to reject one of the heating and ventilating subbids on April 24, 1974, after the expiration of the two-day period specified in the first sentence of the first paragraph of Section 44H, or of its attempt to delete that subbid from the list previously issued pursuant to the second sentence of that paragraph by the "addendum" dated April 25, the second sentence, read with the third and fourth sentences, makes clear that Salem would not have been bound by the rejection or deletion in any event unless the addendum had been mailed "[n]ot later than the second day, Saturdays, Sundays and legal holidays excluded, before the day fixed . . . for the opening of general bids." The plaintiff appears to concede as much in its brief. The day so fixed was April 30, a Tuesday, and the deadline referred to therefore fell on Friday, April 26. Yet there was no evidence that the addendum was mailed on or before the latter date, and the judge found only that it was mailed after the mailing of the statutory list and before April 30. It is well settled that a party asserting the illegality of a contract has the burden of proving the facts necessary to establish such illegality. Wasserman v. Roach, 336 Mass. 564 , 568 (1958), and cases cited. Provident Co-op. Bank v. James Talcott, Inc. 358 Mass. 180 , 191 (1970). The burden is similarly placed in the case of a public contract allegedly invalid by reason of noncompliance with statutory bidding procedures (see Westcott Constr. Corp. v. Cumberland Constr. Co. Inc. 3 Mass. App. Ct. 294 , 296-299 ), and the fact that the vehicle whereby the bid and contract were challenged was a bill for declaratory relief did not relieve the plaintiff of that burden (see Stop & Shop. Inc. v. Ganem, 347 Mass. 697 , 703-704 ; Foley v. McGonigle, 3 Mass. App. Ct. 746 ). The plaintiff therefore had the burden of proving that the addendum was mailed on or before April 26, 1974, and the absence of any evidence on that point is fatal to the plaintiff's claim.