Samuel F. Haven vs. City of Lowell, 5 Met. 35

Hubbard, J. This is a bill in equity for the specific performance of a contract entered into by the inhabitants of the town of Lowell with the complainant, as he alleges, for the purchase of a piece of land on which to erect a market house. The case comes before the court on the bill, answer, and an agreed statement of facts, consisting principally of certain votes and proceedings of the town of Lowell.

The town having relinquished the purchase of the land of the plaintiff, in consequence of their inability to procure other lands in the vicinity which were necessary for the completion of the plan contemplated by them, now deny their obligation either to take the said land, or to satisfy the plaintiff for the loss on the same, and contend that he has no legal or equitable right that can be enforced against them.

The defendants, who are the successors of the town of Lowell, allege, in substance, three grounds of defence against the plaintiff’s bill; one, that the land in controversy was not necessary for the purpose contemplated by the town, and therefore they were not authorized to purchase the same ; a second, that the subject of purchasing the land of the plaintiff was never legally brought before the inhabitants of the town in such manner as to bind the defendants by any vote relating to the same ; and a third, that the contract was not duly executed by the committee on behalf of the inhabitants, nor afterwards ratified by them.

As to the first objection, that the land in controversy was not necessary for the purpose contemplated by the town—■ which was the erection of a market house on a large scale — we consider it virtually settled in Spaulding v. City of Lowell, 23 Pick. 71, in which case the same question arose in regard to the market house actually built, and the uses to which it was applied.

In the close of their opinion, the court say, “ as to the size and other circumstances of the building ” (which necessarily included the land purchased on which it was erected,) “ if the accomplishment of the object was within the scope of the corporate powers of the town, the corporation itself was the proper judge of the fitness of the building for its object, and it is not competent, in this suit, to inquire whether it was a larger and more expensive building than the exigencies of the city required.” So in this case, the object being within the powers of the town, we think it was competent for the. inhabitants to determine the size of the lot that would he necessary and commodious for the uses intended, and that for this purpose they might properly consider the progressive increase of the town.

It is contended by the defendants, that the second

article in the warrant for calling the town meeting on the 27th of April is confined to the subject of borrowing money, and cannot be extended to include the purchase of land, other than that already contracted for, on which to erect a market house. St. 1785, c. 75, § 5. In giving a meaning to this article, if we were to treat it as a contract between parties, we might be disposed to yield to the limited construction put upon it by the defendants. But we cannot view it in such a light.

The articles inserted in warrants for calling town meetings, presenting the various subjects for the consideration of the inhabitants, are from the very nature of the case general in their description, and are oftentimes inartificial in their construction. They are the mere abstracts or heads of the propositions which are to be laid before the inhabitants for their action ; and matters incidental to and connected with such propositions are alike proper for their consideration and action.

If it were otherwise, and the articles were to be the subject of a very critical analysis, much confusion and delay might ensue, and towns would be as often employed in discussing the construction of the articles in the warrant, as in the consideration of the subjects embraced in them.

In the present case, the town were called upon to hear the report of the committee appointed to purchase land on which to erect a market house and furnish an estimate of the expense attending it, and ta determine whether the town would borrow money to enable the committee to make the purchase and erect the building, or to act on the subject as they might think proper.

Now the town, at a previous meeting, had not only been informed that the committee had selected a suitable piece of ground which could be obtained at a given price, and that in their opinion it would be wise for the town to secure it; but the town had acted on their report, and the same committee Were appointed to make the purchase and prepare an estimate ’of the expense of the house.

But it must have been obvious to any one taking an interest in the matter, that the committee, 1 though authorized to purchase the land, might find embarrass-j ments in the way, either as it regarded the title, or the terms - of payment, or the security to be given ; or they might have / found a more eligible site ; or they might alter the plan of the I intended building, and might need more land to carry into effect i any such alteration, to the greatest advantage ; as the town was then in a state of rapid growth. It is therefore no forced eon- >. struction to give to the

article a more enlarged meaning than the ] defendants contend for, and to say that it included the whole subject of the purchase of land and the plan of a building ; that 1 the inhabitants might well believe that the whole matter was still ■ open for their consideration, and would readily expect that changes might be reported by the committee on the subject generally, upon which they would be called upon to act; as well as on the manner of procuring the loan to carry the project into effect.

But even if we had doubts as to giving this enlarged construction to the article, we are satisfied that the subject was fully presented to the town at the meeting on the 5th of June, and that the inhabitants then acted with a full knowledge and understanding of the agreement on the part of the committee to purchase the land of the plaintiff.

This raises .the questions, whether the contract signed by two of the committee of the town, and delivered to the plaintiff, was duly executed by the committee so as to bind the town ; or, if informal and imperfect as an agreement)- whether the act of the town, at their meeting of the 5th of June, was not only a waiver of such informality, but a ratification of the act of the committee.

In respect to the contract signed by two of the committee, and exchanged with the plaintiff for a memorandum taken from him, agreeing to convey the said land to the town, it is well understood, that unless otherwise instructed by the body appointing them, committees act by majorities, and that it is usual for one to sign on behalf of the rest; and in common cases, the signature of one of the number, purporting to be for the com-' mittee, will be good prima, facie evidence of the act of the committee. And we think where two sign in behalf of the ' whole, the inference is the same.

It is indeed agreed by the parties that the paper was signed by two at the verbal request of the other members ; but further than that, it is evident it was the act of the committee, from the fact that the town, at the meeting of June 1st, voted to authorize the same committee, or a majority of them, to complete the purchase of the land by them bargained and contracted for with the plaintiff, for the site of a market house, &c.

If therefore the contract were defective in the manner of its execution, this vote is such a confirmation and ratification! of the doings of the committee, as would effectually cure any such defect; and it would have probably precluded the plaintiff from denying that the town had bound themselves to him, if they had called on him to make the conveyance, and he had refused. Though the defendants have contended that the meeting of the 1st of June did not confirm the contract of April 29th, nor authorize the committee to proceed until the money was procured, yet we entertain no doubt on this point.

The meeting was called to see if the town would borrow money to complete the purchase of the land contracted for, including the plaintiff’s, and to enable them to erect the building. And the town at their meeting deliberately ratify the contracts for the land, and in an independent vote direct and empower the committee to borrow, on the credit of the town, a sum sufficient for the purchase of the land and the erection of the market house.

And these contracts would have been completed, but for difficulties which arose in regard to effecting a loan on the credit of the town ; and there appears to have been no default or inability on the part of the plaintiff to comply with his undertaking.

Without farther enlarging on the facts, we are of opinion that the contract, made by the committee of the town with the plaintiff, was well executed on the part of the committee, was ratified by the town at a meeting in which the subject of such contract was legally brought before them, and that they are now bound to fulfil their engagement, notwithstanding they found it necessary to make a purchase of land afterwards in a different place.

According to the agreement of the parties, the case is to be sent to a master to ascertain the difference between the present cash value of the land and the price contracted .to be given therefor, with interest on the amount, thus ascertained, from the time of the contract.