Osgood v. City of Boston , 165 Mass. 281 ( 1896 )

Knowlton, J.

The only contract between the parties is that made at the time of the sale. What the auctioneer stated orally does not differ in legal effect from the writing which was made soon afterwards. The building was sold to be removed within fifteen days from date, and a moving permit was guaranteed if applied for on or before January 2,1891. Without such a permit the plaintiff could not remove it without tearing it down. Such a permit was applied for before that date, but the application was not in accordance with chapter 3, section 3, of the regulations of the board of aldermen in effect at that time, which required that each application to move a building should be in writing, and accompanied by the written consent of all railroad corporations whose tracks were to be encumbered by the moving of the building. The board of aldermen passed an order authorizing the superintendent of streets to issue a permit “ on the terms and conditions expressed in the ordinances of the city relating thereto.” Such a permit was accordingly issued, which contained, among other provisions, one that the person to whom the permit was granted should not cross any steam or street railway tracks except in accordance with the written directions of the corporation using the same. The plaintiff declined to accept the permit on account of this provision, and did not remove the building within fifteen days. The city thereupon again sold the building, and the plaintiff brings this action for damages for a breach of the contract.

Under the charter of the city the board of aldermen are vested with authority to make regulations ip regard to the occupation and use of the streets, and the Pub. Sts. c. 113, § 27, contain a special provision in regard to regulations for the use of street railways. Various ordinances and regulations have been made at different times in regard to the streets. See Revised Ordinances, 1890, c. 18, §§ 1-3, cc. 20, 37 ; Revised Regulations, 1890, c. 3, § 3, c. 7, § 30. ■

The authorities of the city having charge of the sale of buildings could not bind the city by a guaranty giving a permit in any other form or on any other conditions than those prescribed by the city ordinances and the regulations of the board of aider-men. If they assumed to guarantee the granting of a permit in any other way, or of any other kind, the plaintiff was bound to know that they were acting without authority. Woodward v. Boston, 115 Mass. 81. Even if the city government, by a concurrent vote of both branches of the city council, could have made a valid contract to give a permit in violation of the city ordinances or the regulations of the board of aldermen, which we do not decide, it is clear that the auctioneer, the city architect, and the mayor’s secretary could not bind the city by such a contract.

The action of the board of aldermen in ordering the permit was not a ratification of the contract interpreted as the plaintiff interprets it. They apparently assumed that the guaranty was merely to give a permit if the plaintiff brought himself within the ordinances and regulations in regard to the subject.

These considerations dispose of the case now before us. On the failure of the plaintiff to remove the building within fifteen days, the defendant might treat the contract as broken, and sell the building again. The willingness of the defendant to return to the plaintiff the money that he paid for the building will doubtless make it unnecessary at any time to consider whether the plaintiff is right in his construction of the contract which the auctioneer assumed to make.

Judgment for the defendant.