PATRICK McGOVERN & another vs. CITY OF BOSTON.

CROSBY, J. This is a bill in equity brought to rescind a completed contract made by the plaintiffs with the Boston transit commission for the construction of Section E of the Dorchester tunnel, so called, and to recover the value of the work done on a quantum meruit. The defendant's demurrer to the bill was sustained by a single justice, who reported the case to this court.

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The Boston transit commission was created, and its duties were defined by St. 1894, c. 548, and acts in addition and amendment thereto. The contract in question was authorized by St. 1911, c. 741, and was dated December 16, 1914. Thereafter the plaintiffs completed the contract according to its terms.

The plaintiffs allege that, after the completion of the work, they learned that the boring plans submitted by the transit commission did not show the true character of the material which it would be necessary to excavate and remove; that some of the borings indicated ledge as found in certain locations; that such borings were not shown on the plans but were wilfully concealed by the commission from the plaintiffs; that some of the borings were made with improper and insufficient tools; that the chief engineer of the commission knew or ought to have known that ledge was encountered by the borings; and that the omission from the boring plans of borings showing ledge was for the purpose of deceiving bidders as to the nature of the materials to be removed and to secure at a low cost the performance of the work. And they contend that, by reason of such concealment on the part of the commission, they were put to an additional expense of approximately $240,000 in the performance of the contract, which they seek to recover.

In answer to these allegations the defendant contends, among other things, that the statement on the plans relating to the character of the materials which had to be removed in the performance of the work, were expressions of opinion and were not representations of fact; and that, if the plaintiffs were not willing to accept and be bound by the opinions of engineers of the commission, it was their duty to request an opportunity to examine the boring samples upon which the opinions so expressed were based or to make their own borings. Winston v. Pittsfield, 221 Mass. 356.

The statute under which the contract was authorized (St. 1911, c. 741) provides in § 17 as follows:

"The commission may make contracts in the name of the city for the work herein authorized, but all contracts involving $2,000 or more in amount shall be in writing and signed by a majority of the commission; and no such contract shall be altered except by an instrument in writing, signed by the contractor and a majority of the commission, and also by the sureties, if

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any, on the bond given by the contractor for the completion of the original contract. No such contract, and no alteration of any such contract, shall be valid or binding on the city unless executed in the manner aforesaid."

The provision in the statute that all contracts involving $2,000 or more in amount shall be in writing and signed by a majority of the commission, manifestly was intended by the Legislature to protect the city of Boston from the uncertainty and danger of oral contracts involving large amounts, and from hasty and ill-advised action. A contract in writing, expressed in clear and certain language, free from ambiguity, would relieve the city from the dangers attendant upon contracts, the scope and effect of which might depend wholly upon verbal talk, subject to different interpretations in view of the language used by the parties. Statutes, city charters and ordinances relating to municipalities, containing similar provisions, have often been upheld as reasonable and proper safeguards of binding force upon municipalities and their officers and agents, as well as upon those who contract with them. United States Drainage & Irrigation Co. v. Medford, 225 Mass. 467, 472. Fiske v. Worcester, 219 Mass. 428. McLean v. Holyoke, 216 Mass. 62. Sullivan v. Mandell, 212 Mass. 174. Commercial Wharf Corp. v. Boston, 208 Mass. 482. The plaintiffs are chargeable with knowledge of the provisions of § 17 and are bound by its terms. Fiske v. Worcester, supra.

The members of the Boston transit commission, in making the contract in question under § 17 above quoted, were not servants or agents of the city, but acted as public officers. As such, the city is not liable for their negligence. Stewart v. Hugh Nawn Contracting Co. 223 Mass. 525. Murphy v. Hugh Nawn Contracting Co. 223 Mass. 404. Codman v. Crocker, 203 Mass. 146, 154. Mahoney v. Boston, 171 Mass. 427. See also Bolster v. Lawrence, 225 Mass. 387. Nor is a municipality liable for the misconduct of its public officers. Johnson v. Somerville, 195 Mass. 370. Heiser v. New York, 104 N. Y. 68.

As the city cannot be chargeable upon an express contract entered into in contravention of the statute, it is equally plain that no recovery can be had upon an implied contract: to permit such recovery would be to defeat one of the purposes for which the statute was enacted. To allow the plaintiffs to recover upon

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a quantum meruit would be contrary to the spirit as well as to the letter of the statute, and would be in plain disregard of its terms. Bartlett v. Lowell, 201 Mass. 151. The statute evidently was enacted to safeguard the interests of the defendant; it cannot be evaded or annulled, and must be held to be in full force and effect. Nor can it be regarded as permissive rather than mandatory, or as vesting in the commission a discretionary power to disregard its clearly expressed intent.

The contention of the plaintiffs, that as there is no express prohibition in the statute that the defendant shall not be charged with work otherwise than under a contract in writing such prohibition cannot reasonably be inferred, cannot be sustained, as the only reasonable inference is that all contracts coming within its terms must be in writing. And the plaintiffs are not entitled to recover under the doctrine of Hayward v. Leonard, 7 Pick. 180, and cases decided upon similar grounds. Atkins v. Barnstable, 97 Mass. 428. Reed v. Scituate, 7 Allen 141. Walker v. Orange, 16 Gray 193. Such cases are clearly distinguishable from the case at bar. Nor are they entitled to recover upon a quantum meruit because the defendant has had the benefit of the work. Douglas v. Lowell, 194 Mass. 268, 275, and cases cited. The case at bar is not within the principle discussed in Long v. Athol, 196 Mass. 497.

The bill cannot be maintained based on mutual mistake. Such is not the ground alleged for relief, and we do not mean to intimate that a bill would lie if brought on that ground. The allegations are not sufficient to warrant a cancellation of the contract or to permit the plaintiffs to recover upon an implied contract. The statute (§ 17) which provides that all contracts involving $2,000 or more in amount shall be in writing, is of equal force and effect in a suit in equity as in an action at law.

In view of the conclusion reached, — that the bill is demurrable and cannot be maintained, and that because of the statute there can be no recovery, — we have not deemed it necessary to consider many other questions presented by the record. The demurrer was sustained rightly, and in accordance with the terms of the report, a decree is to be entered dismissing the bill unless an amendment to it shall be allowed by the court.

So ordered.