Vinal v. Inhabitants of Nahant , 232 Mass. 412 ( 1919 )

Rugg, C. J.

This case was tried before a judge of the Superior Court without a jury. He found certain facts, granted and refused divers requests for rulings of law, subject to exception, and made a general finding for the defendant. There is a full report of the evidence. The findings of fact made by the court below are not open to revision in this court. The general finding for the defendant imports a finding of all the incidental facts essential to that conclusion. The correctness of rulings and decisions in matters of law to which exceptions were saved alone is open here. Schendel v. Stevenson, 153 Mass. 351, 354. Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 3.

The action is in contract to recover for services rendered by the plaintiff as architect of a proposed new town hall for the defendant. The plaintiff’s interest was first enlisted by one Finnerty, a citizen of the defendant town then without official station, at whose request he prepared preliminary plans. As a result an article was inserted in a warrant for a town meeting of the defendant, which, so far as material, was of this tenor: “To see if the Town will accept plans for a new fireproof Town Hall Building substantially as drawn by Arthur H. Vinal, architect, which embodies the ideas of D. G. Finnerty and others presented to the Town by him at this meeting, to appropriate the sum of $72,000 for the construction of such fireproof Town Hall.”

Under this article it was “Resolved that a new fireproof Town Hall be built at a cost for the completed building of not over $75,000, and that the Finnerty plan for such a building be adopted.”

This article and resolution did not constitute a contract between the plaintiff and the defendant. No proposition had been made by the plaintiff. He had prepared at the request of a private citizen of the town a study or plan showing the exterior, a plan for the basement, for the first story and for the second story, and a perspective. These were merely preliminary and incomplete. The reference to the plaintiff in the article in the warrant was simply to identify the sketches and not to state an offer or embody a proposal. It is bare of any indication of conditions upon which the plaintiff was willing to be employed. The vote is equally devoid of any expression of the terms of an agreement or of any indication of concluded bargain. No obligations were set forth and no duties were stated. The adoption of the plan sketched by him was no more than an initiatory step, signifying an intention. Whether that intention would ripen into a meeting of minds between the parties upon the essential features of a contract rested wholly upon the uncertainties of the future. The case upon this point is within the authority of Benton v. Springfield Young Men’s Christian Association, 170 Mass. 534, and Salvation Army of Massachusetts, Inc. v. E. K. Wilcox Post G. A. R. 225 Mass. 136, and cases collected at page 138. Whatever might be the effect of this vote in restricting the power of a committee to change the plans, or restraining its members in their own conduct, it did not bind the town to the plaintiff.

A further vote under the same article was passed by the town, providing for a building committee with power among other matters to advertise for bids for the erection of the town hall and to supervise the construction of the same. This vote authorized the doing of whatever subsidiary acts were reasonably necessary to carry out the main resolution. It implied power to employ an architect to prepare detailed plans and specifications for the erection of a town hall in» substantial accordance with the preliminary drawings of the plaintiff, but subject to the definite conditions set forth in the resolution. That resolution is to be interpreted with reference to the general potentialities and specific limitations of a municipality under our laws. A town is a governmental subdivision. It possesses only the powers conferred upon it by law. Restrictions expressed by its vote, therefore, are to be treated as strict limitations upon the powers of its officers and agents. The resolution in question had three such restrictions. The first related to the character of the building. It was to be a “fireproof Town Hall.” The second concerned the cost of the “completed building” and specified that it should be “not over $75,000.” The third adopted the “Finnerty” or the plaintiff’s plan. In the present connection it only is necessary to consider the matter of cost. Under all the circumstances here disclosed the words of the resolution constitute a fixed maximum within which must be comprehended all the elements of expense connected with the construction of the building. By necessary implication this includes the architect’s fees if one were employed. The cost of the completed town hall included all items essential to it as a finished structure, and was restricted to the specified amount. In this respect the vote of the town is distinguishable from that involved in Shea v. Milford, 145 Mass. 528. Confessedly the committee could not have performed their duties without the aid of an architect. At any rate, the question whether such employment was necessary was a question of fact as to which the finding of the court was in favor of the plaintiff. Upjohn v. Taunton, 6 Cush. 310.

The committee therefore were empowered to enter into negotiations with the plaintiff and to conclude a contract with him within the bounds set by the resolution. After some discussion and communications looking toward a different agreement, the committee finally received a letter from the plaintiff which, being accepted by them, embodied the arrangement between the parties. The salient clauses of that letter, so far as now material, are these: “ I agree that I will proceed and complete the plans of the Town Hall Building as submitted to and as voted for by the Town of Nahant at the Town Meeting of March 18, it being understood that the Committee shall have the right to make such changes in the plans as will not materially increase the cost of construction, and as may be agreed upon between us. . . . If upon advertising for bids no bids are received from builders who are satisfactory to the Committee, which will enable your Committee to build the building complete, including architect’s commissions, within the limit set by the Town, namely, $75,000,1 will not hold the Town of Nahant nor the Committee legally responsible for the work done by me. . . . The true intent and meaning of this letter is that it is my desire and wish to co-operate in every way possible with your Committee and erect a building that will be a credit to your Town, your Committee and myself.” The rights of the parties must be determined according to the meaning of this letter. The court ruled correctly that the plaintiff had no ground for recovery except according to its terms.

Pursuant to its provisions, detailed plans were prepared by the plaintiff and submitted to the committee. While satisfactory in the main, there were certain features which the committee insisted upon having changed. These related to the character of the roof and the nature of the flooring and the presence of supporting columns in the fire engine room and gymnasium. The judge instructed himself as matter of law, as requested by the plaintiff, that the burden was on the defendant to show that the changes which the committee made did not materially increase the cost of the building and were mutually agreed upon. Changes were made in the roof, which increased the cost of the building to a material amount. These changes, however, might have been found to have been required by the committee in order that the building might be “fireproof” and thus conform to the underlying mandate of the vote of the town upon that point. If this were found to be so (as is imported by the general finding for the defendant), then it would follow that such changes did not come within the purview of the word “changes” in the contract between the plaintiff and the committee, but were changes agreed upon in order that the building should be such a building as was described in the vote of the town, that vote being imperative and binding both upon the plaintiff and the committee. On the evidence, which was somewhat conflicting, it might "have been found that all changes in the detailed plans as presented to the committee by the plaintiff were agreed upon by the latter; that so far as these changes related to the roof they were made by the plaintiff in order to render the building conformable to the requirement of the vote of the town that it be “fireproof; ” and that the other change eliminating the posts did not increase the expense by more than $1,000. Testimony as to other changes and increases of costs may not have been given credence by the court. If these were found to be the facts, then it could also have been found that the cost, so far as concerned the cost of the building according to the plaintiff’s plans, was not modified materially with respect to the point whether it could have been constructed within the amount, fixed as the maximum limit of cost, by the vote of the town. There was no evidence to the effect that any bid was received from a general contractor deemed responsible by the committee (whose reasonable judgment was to be satisfied in this particular under the contract between the plaintiff and defendant), which together with bids for other parts of the work, would have permitted the cost of the building to be within the amount specified in the resolution of the town.

• It could not have been ruled as matter of law that the plaintiff was entitled to an opportunity to modify his plans to the end that the cost of the building might be brought within the specified amount. It was ah express term of his contract with the defendant that the test of his right to receive compensation should be bids received after advertisement. If these exceeded the $75,000, he was not entitled to recover.

The question whether the bids were reasonably near to the cost specified in the vote is immaterial in view of the terms of the plaintiff’s contract.

The reasonableness of the changes made by the committee was irrelevant in view of the subsidiary finding included within the general finding for the defendant to the effect that the plaintiff agreed to them all.

The conduct of the new committee, which subsequently built a town hall according to other plans, although identical with a single exception with the committee here concerned with the plaintiff, with reference to giving another architect opportunity to revise his plans after bids were received, had no bearing upon the rights of the plaintiff. He must stand or fall on his own written contract. There is nothing to show the terms of the contract with the subsequent architect; and manifestly the offered evidence had no bearing on the good faith of the old committee so far as that was material under the issues raised.

The records of the committee were admitted in evidence rightly. They were public officers and their transactions with the plaintiff and the changes directed by them in the plans were properly shown by their records. Hayward v. Pilgrim Society, 21 Pick. 270, 277. These were quite different from the records excluded in Old South Society v. Wainright, 156 Mass. 115, which were self-serving statements.

The records of the town were competent as showing the extent of the authority conferred upon the committee, their right to contract with the plaintiff and the conduct of the town respecting the plaintiff’s plans and the liability to him after accepting the report of the committee.

Even if some parts of the records of the committee and of the town ought to have been excluded, the plaintiff should have called special attention to them and have asked to have them stricken out. Having failed to do so, his general exception cannot be sustained. Leavitt v. Maynes, 228 Mass. 350, 354, and cases there collected.

All of the exceptions which have been argued have been considered carefully, but they do not require further discussion. It follows that there was no error in the granting or denial of any of the requests for ridings or in the exclusion or admission of testimony.

Exceptions overruled.