Commercial Wharf Corp. v. City of Boston , 208 Mass. 482 ( 1911 )

Braley, J.

It was said upon exceptions taken by the plaintiff at the first trial of these cases, after a verdict had been ordered for the defendant, that “no question seems to have been made but the lease and the extension for five years from December 1, 1896, were duly executed and became binding upon the defendant. Nor was there any dispute that for any occupation of the whole or a part of the leased premises after the term of the lease, as extended, had expired, the defendant would be liable to pay rent at the rate stipulated in the lease. The question at issue was whether there had been such occupation,” and it was decided that “ the liability of the defendant depended upon whether it actually had occupied any part of the leased premises during the period sued for; and this presents a questian of fact to be determined by the jury.” Commercial Wharf Co. v. Boston, 194 Mass. 460, 466, 468. The cases are now before us on the defendant’s exceptions after verdicts for the plaintiff at the second trial, upon the original declaration counting on the covenant in the lease, that the defendant should pay rent at the same rate for such further time as it should hold the premises after the lease expired, and upon the amended declaration with a count for use and occupation during the periods in dispute.

It being alleged that both counts are for the same cause of action, they are inconsistent. If the defendant held over without any further agreement, it was a tenant at sufferance, and would be liable for the rent at the rate reserved in the lease, until the premises were vacated. R. L. c. 129, § 3. Edwards v. Hale, 9 Allen, 462. Warren v. Lyons, 152 Mass. 310. Benton v. Williams, 202 Mass. 189. The distinction between an action on a covenant of this nature, and on an implied eon-tract creating a tenancy at will where the occupation continues beyond the term is stated in Leavitt v. Maykel, 203 Mass. 506, 510. See Mullaly v. Austin, 97 Mass. 30, 33. But no request was made, that the plaintiff be required to elect, and if the evidence supports either count, the general verdict will stand, and judgment may be entered on that count. Brown v. Woodbury, 183 Mass. 279. West v. Platt, 127 Mass. 367, 371.

The defendant’s request for rulings, that upon all the evidence the plaintiff was not entitled to recover, and that the jury would not be warranted in finding that it was a tenant at will, having been denied, the city contends, that as a municipal eorporation whose powers were defined by statute, it was not bound by either the lease, or the agreement of extension, and that the evidence was insufficient to justify the finding of its occupancy of the premises, or, if sufficient, it is not responsible under an implied agreement to pay for use and occupation. The former opinion did not discuss dr determine these questions. We take them up for decision in the order stated.

The votes of the city council “ authorized ” the board of health to lease the premises as “a location for a boat landing,” and when the original lease was about to expire to renew the lease for a further term, the rental “ to be charged to the appropriation for city council incidental expenses.” But the lease and agreement of extension were not signed by the board, and on the face of the instrument, the city never became obligated unless bound by the mayor’s execution of the contracts in its behalf. The mayor acted under the votes. If the first vote was invalid, the second falls with it. The St. of 1885, c. 266, § 12, relating to the chartered powers of the defendant, and in force when the votes were passed, contains this provision: The city council shall not “. . . directly or indirectly take part in the employment of labor, the making of contracts, the purchase of materials or supplies, the construction, alteration or repair of any public works, buildings or other property, or the care, custody and management of the same, or in the conduct of any of the executive or administrative business of the city, or in the expenditure of public money, except such as may be necessary for the contingent and incidental expenses of the city council or of either branch thereof. . . .” The board of health alone under § 6 had authority to make the necessary contracts, required in the proper management of the health department. If under St. of 1890, c. 418, § 6, where the expenditure involved equals a certain amount, the mayor’s approval in writing must be obtained or the contract is not valid, the mayor’s power to act is limited to contracts which originate with the departments, the proper discharge of whose administrative functions renders the contract advisable or necessary. By St. 1885, c. 266, § 12, the city council was not a department within the purview of the statute, and could not make contracts. The original execution of the lease, and the indorsement on the lease of the extension of the term, by the respective mayors who held office at the time, were inoperative and void. The appropriation, moreover, was provided for its own incidental expenses as a distinct municipal body. It could not annually be increased for a purpose wholly foreign, by adding the amount of the yearly rent to accrue under the lease, or lawfully be transferred and diverted to the board of health to be spent not for the preservation of the health of the community, but as the evidence shows, for the accommodation of the general public. Hennessey v. New Bedford, 153 Mass. 260.

Nor were the payments of rent until the prolonged term expired and at a similar rate for some six months thereafter, or the notices of the mayor that the lease had terminated and that the premises would be vacated and surrendered, proof of ratification. The money paid was illegally disbursed, and the mayor, having no original authority to make the contracts, could not subsequently give them life by his official recognition. St. 1885, c. 266, §§ 6, 12. Nelson v. Georgetown, 190 Mass. 225, 229. Revere Water Co. v. Winthrop, 192 Mass. 455, 462.

It is put beyond question under our decisions, that parties who are invited, or seek to enter into contractual relations with a municipal corporation cannot if the contract is made, plead want of knowledge of such statutory limitations in avoidance, and the plaintiff, having been charged with notice of the invalidity of the lease, cannot recover on the covenant. Adams v. Essex, 205 Mass. 189,197.

We assume the evidence warranted the special findings of the jury so far as they were applicable to the second count, that with the plaintiff’s permission the defendant, after the expiration of the prolonged term, occupied the premises during the months sued for, and the instructions as to the essential elements of a tenancy at will, which the plaintiff must prove in order to recover, were unexceptionable. Rice v. Loomis, 139 Mass. 302. Commercial Wharf Co. v. Boston, 194 Mass. 460. A tenancy at will, however, rests upon an express or implied contract. Knowles v. Hull, 99 Mass. 562, 565. And our attention has not been called to any general law, or special provision of the defendant’s charter, authorizing the city to expend any portion of the revenue raised by taxation, to procure or to maintain a location for a boat landing. “ Landing places,” said Chief Justice Parker, in Kean v. Stetson, 5 Pick. 492, 495, “ have in some towns existed by immemorial usage on the banks, and perhaps on the shores of creeks or rivers, but towns have no right to create them either as such, or under the pretense of laying out a way,” and new landing places cannot be established or laid out without legislative authority. Commonwealth v. Tucker, 2 Pick. 44. Winslow v. Gifford, 6 Cush. 327. Bennett v. Clemence, 6 Allen, 10. Commonwealth v. Roxbury, 9 Gray, 451, 527. If the city’s occupation had conferred upon it some pecuniary gain, benefit or advantage, or was in performance of some public duty enjoined by statute, it could be held under the implied contract upon which the plaintiff must rely. Spaulding v. Peabody, 153 Mass. 129. Dickinson v. Boston, 188 Mass. 595, 599. Douglas v. Lowell, 194 Mass. 268. Capron v. Taunton, 196 Mass. 41, 44. But there is no evidence that the premises were required for any general or special municipal use or were provided for or occupied by any of the various departments of the city, and it was not within the power of the defendant to expend its income for a purpose not authorized by statute. Cavanagh v. Boston, 139 Mass. 426. Bartlett v. Lowell, 201 Mass. 151.

The first request should have been given and the exceptions . must be sustained, but as the plaintiff manifestly has no cause of action, judgment is to be entered for the defendant under St. 1909, c. 236.

So ordered.