348 Mass. 769

October 28, 1964

In this action of contract the declaration contains five counts. Count 1 was waived and the trial judge directed verdicts for the defendant on counts 3, 4, and 5. There was a verdict for the plaintiff on count 2. The defendant took an exception to the trial judge's charge "wherein the court stated that from the language of the pleadings [count 2] it appeared that the plaintiff had brought an action to recover for work, labor and materials." We note that although count 2 refers to a written contract it also refers to an "account annexed" which contained specifications. The judge instructed the jury that the plaintiff could recover "the fair and reasonable value for the services performed" if he had acted in good faith and "substantially performed the contract." Although count 2 is far from well drafted, we are of opinion that the judge could determine that the plaintiff was declaring on a common count in quantum meruit. "By declaring on an account annexed the plaintiff has by legal intendment stated all the allegations contained in all the common counts." Martha Inc. of New York v. Remis, 330 Mass. 357, 359. Lantz v. Chandler, 340 Mass. 348. There was no error. The plaintiff appealed from the disallowance of his bill of exceptions to the direction of verdicts for the defendant on counts 3, 4, and 5 of the plaintiff's declaration. His appeal is not properly before us. His "exclusive remedy was by petition to establish exceptions." Jones v. Hayden, 314 Mass. 519, 521-522. Commonwealth v. Kossowan, 265 Mass. 436, 437, and cases cited. G. L. c. 231, Section 117.

Plaintiff's appeal dismissed.

Defendant's exceptions overruled.


348 Mass. 769

October 28, 1964

The petition for the return of 1963 automobile registration plates was dismissed in the Superior Court, November 13, 1963. The petitioner's attorney stated in open court that the petitioner has 1964 plates.

Order dismissing petition for writ of mandamus affirmed.


348 Mass. 769

October 29, 1964

A school teacher brings this action of contract against five defendants, constituting a majority of the members of the school committee of Westford, to recover increases of salary voted by the school committee for the year 1963. The defendants later voted to "eliminate" from the school committee budget the funds necessary to pay the salary increases. A demurrer was properly sustained. The town, rather than the school committee or its individual members, would be liable for duly earned teachers' salaries which have been finally established by

Page 770

the school committee by a vote not rescinded. See Callahan v. Woburn, 306 Mass. 265, 273; Lynch v. Fall River, 336 Mass. 558, 559. See also G. L. c. 71, Section 38 (as amended through St. 1960, c. 333, Section 2); McQuillin, Municipal Corporations (3d ed.) Section 12.214. We need not now consider what power the school committee possesses to rescind previously voted salary increases. See G. L. c. 71, Section 43 (later amended by St. 1963, c. 466, Section 4). Cf. McDevitt v. School Comm. of Malden, 298 Mass. 213, 214-215; Watt v. Chelmsford, 328 Mass. 430, 433; Murphy v. Cambridge, 342 Mass. 339, 340-342. Cf. also O'Brien v. Pittsfield, 316 Mass. 283, 286.

Order sustaining demurrer affirmed.