This is an action brought on an indemnification agreement executed by the third-party defendants (appellants) in favor of the third-party plaintiffs (appellees). At the conclusion of the evidence the appellants moved to amend the pleadings to conform to the evidence presented (see generally Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346 , 354-355 ), and the appellees moved for a directed verdict. The judge denied the motion to amend and allowed the motion for a directed verdict. There was no error.
We think the judge's ruling that the proposed amendment would have been futile was correct. See Strong v. Merchants Mut. Ins. Co., 5 Mass. App. Ct. 870 (1977). It is manifest from the pleadings, the transcript and the agreement that regardless of the proposed amendment the appellants did not have a legally sufficient defense to the appellees' claim, which is otherwise not disputed. There is nothing in this record to support the appellants' proposed defenses of (1) failure of consideration, (2) impossibility of performance, and (3) frustration of purpose. We need look no further than Baetjer v. New England Alcohol Co., 319 Mass. 592 , 600-602 (1946), Essex-Lincoln Garage, Inc. v. Boston, 342 Mass. 719 , 721 (1961) (cited by the trial judge), and Johnson v. Norton Housing Authy., 375 Mass. 192 , 195 (1978), to conclude that this case was rightly decided for the reasons given by the trial judge.
The cities and towns hold the public highways and bridges located within their respective limits as the agents of the Commonwealth in trust for the use of the public as a whole and are subject to information or indictment at the behest of the Commonwealth if they fail to perform the duty imposed on them by G. L. c. 84, Section 1, to keep such highways and bridges in repair so that they are reasonably safe and convenient for travelers at all seasons. Hill v. Boston, 122 Mass. 344 , 346-347, 350, 351 (1877). Cheney v. Barker, 198 Mass. 356 , 363 (1908). Higginson v. Treasurer of Boston, 212 Mass. 583 , 584-585, 588-590 (1912). 2 McQuillin, Municipal Corporations Section 4.148 (3d ed. 1966). There is no reason in law, logic or public morality why the Commonwealth, when it has acted under a statutory provision such as St. 1968, c. 684, Section 3, to spend the monies of the general public to repair all the injuries to such highways or bridges which have been occasioned by an extraordinary natural disaster, should be deprived of the proceeds of a recovery in damages which a particular city or town has been able to secure from a third party by reason of his tortious acts which contributed to the
effects of the disaster on the public highways and bridges located within the limits of that city or town. If a traditional legal theory is necessary to support that conclusion, it can be found in ordinary principles of agency and restitution. See Restatement (Second) of Agency Sections 387 and 404A (1958); Restatement of Restitution Section 1 and Section 162, Comment b (1937). The judgment is reversed, and a new judgment is to be entered which awards to the Commonwealth the damages in tort which have been recovered by the town of Lee and which are now in the hands of the plaintiff in interpleader, together with such interest as may have been earned on those damages.
[Note 1] Commonwealth of Massachusetts.