Holiver v. Department of Public Works

333 Mass. 18 (1955) 127 N.E.2d 790

JOSEPH H. HOLIVER
vs.
DEPARTMENT OF PUBLIC WORKS.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1955. July 1, 1955.

Present: QUA, C.J., LUMMUS, WILKINS, SPALDING, & COUNIHAN, JJ.

Jacob J. Spiegel, for the plaintiff, submitted a brief.

Joseph H. Elcock, Jr., Assistant Attorney General, for the defendant.

LUMMUS, J.

This is a proceeding to obtain a declaratory decree relative to the rights and obligations of the parties under a contract made in May, 1941, between one McGrath and the Commonwealth, acting by the department of public works, for the purchase by McGrath from the Commonwealth of land on Nashua Street in Boston for $100,000, payable $6,500 at once and the balance in eleven annual instalments of $8,500 each, with interest. The contract was assignable and was assigned through various assignees until the plaintiff Holiver acquired it early in 1948. Neither McGrath nor any of the assignees made any payment except the first payment of $6,500.

The defendant did not know of any assignment before November 23, 1948. Because of a shortage of building materials, the annual payments had been suspended for the duration of the national emergency declared by the President of the United States on May 27, 1941. But under the contract if the defendant should find that building materials were available it could notify McGrath that payments must be resumed, as it did on November 23, 1948. No further payment was made, and on May 14, 1953, the defendant notified McGrath and the assignees that payments were in default. On June 2, 1953, the defendant, as it might do, declared the contract null and void.

The judge entered a decree, declaring that the contract of May, 1941, is null and void, and that the first payment of $6,500 made by McGrath is forfeited to the Commonwealth as liquidated damages as provided in the contract, with costs. The plaintiff Holiver appealed.

Nothing in the record raised the point that the notices sent by the defendant to McGrath and the assignees were not authorized by vote of the members of the department. Scullin v. Cities Service Oil Co. 304 Mass. 75, 83-84. For that reason that point is not open on this appeal. Nash v. New England Mutual Life Ins. Co. 127 Mass. 91, 98.

The plaintiff contends that there is no evidence that the notice of November 23, 1948, from the department to McGrath was ever mailed to him or that he was the McGrath named in the contract. The judge found on sufficient evidence that that notice was mailed to him. The regular course of the mails is presumed. Anderson v. Billerica, 309 Mass. 516, 518. Hobart-Farrell Plumbing & Heating Co. v. Klayman, 302 Mass. 508, 509. There was no evidence that McGrath did not receive that notice. There was in evidence a registry receipt for that notice signed by Daniel F. McGrath. If the objection of the plaintiff had substance, evidence in support of it might well be expected.

So far as appears, the department never was notified of any assignment of the contract prior to its notice of November 23, 1948. For that reason the department could deal with McGrath as the owner of the contract, and give notice only to him. Dixon v. Smith, 181 Mass. 218, 221.

The plaintiff contends that under the contract the payments on the price were to be suspended throughout the duration of the emergency declared by the President, and the obligation to pay could not be made to resume within the period of that emergency. We do not so construe the contract. After the emergency ended payments were to be resumed automatically without action by anyone to that end. No finding by the department that building materials were available was needed, after the emergency had ended. The department, in our opinion, by finding that building materials were available, could require a resumption of the payments even during the existence of the emergency. And the emergency was ended by presidential proclamation on April 28, 1952.

The argument for the plaintiff has taken a wide range. We have dealt with its more important aspects. We have considered it all, and find no error in the decree.

Decree affirmed with costs of this appeal.