Caverly v. City of Lowell , 83 Mass. 289 ( 1861 )

Bigelow, C. J.

The right of the plaintiff to recover for the services charged in his bill, and which are in dispute between the parties, depends on the construction of the ordinance of the city prescribing the duties of city solicitors. By accepting the office, he assented, by implication, to perform its duties as therein set forth for his salary, and for such additional compensation for special services therein designated as should be just and reasonable. This ordinance in fact constituted the contract between the city and himself, by which his official duties and compensation were to be regulated and governed.

1. In regard to the items charged for services in the trial of the case of Tyler and others against Mather, we are of opinion that they were rightly allowed. They came strictly within the line of his duties, because they were rendered in prosecuting a suit to which the city was a party, and in which a right and claim of the city were in controversy. As these were rendered in the trial of a case in the court of common pleas, they are of a nature such as, by the terms of the ordinance, he had a right to claim compensation for in addition to his regular salary.

2. So also he had a right to claim an additional compensation for his services in preparing reports and exceptions in the cases in which he actually appeared and conducted the trials in behalf of the city. These services may fairly he considered as a part of the duty incident to the trials, and as not coming within the range of his ordinary duties.

3. But the items charged for examining records and preparing a report to the city council of the cases in which the city was interested in the year 1857 ought not to be allowed. Among the duties which he was required to perform without additional compensation was any professional act which might be required of him by any order of the city council. These services were rendered in pursuance of such order, and are therefore included among those which he was bound to perform as part of his ordinary duties. Exceptions sustained.