CENTRAL TOW CO. v. BOSTON, 371 Mass. 341 (1976)

357 N.E.2d 310

Supreme Judicial Court of Massachusetts. Suffolk.September 16, 1976.
November 15, 1976.

Present: HENNESSEY, C.J., BRAUCHER, KAPLAN, WILKINS, JJ.

Municipal Corporations, Contracts. Contract, Validity, With municipality, Towing motor vehicles.

Where there was no express contract between the city of Boston and a tow company which towed and stored automobiles upon request of city officials, the city was not liable for towing and storage charges with respect to automobiles which were unclaimed by their owners. [343-345]

BILL IN EQUITY filed in the Superior Court on October 5, 1972.

The suit was heard by Prince, J., on a master’s report.

After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Sumner H. Woodrow for the plaintiff.

Kevin F. Moloney, Assistant Corporation Counsel, for the city of Boston.

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KAPLAN, J.

The plaintiff company, authorized by the Department of Public Utilities to engage in towing and storing motor vehicles, sued the defendant city of Boston[1] for charges calculated at $46,010 incurred — so the claim asserted — for towing and storing 104 vehicles in the period from October, 1971, to July, 1972, at the alleged request of the city.[2] After a responsive pleading by the city, a judge of the Superior Court on August 26, 1974, referred the matter to a master who rendered a report favoring the plaintiff. On motion of the plaintiff to confirm and of the city to reject the report, the judge accepted the master’s subsidiary fact findings, but, disagreeing with the master’s general findings (grounded on legal rulings) and conclusions of law, the judge ultimately directed entry of judgment for the city.[3] The plaintiff having appealed to the Appeals Court, we brought the case here on our own motion.

On sundry occasions the Boston police enlisted the aid of tow companies to remove private vehicles from the city streets. The most common occasion was when a car was parked in a prohibited area, such as a hospital zone, or offended the law in some similar fashion. So also the police saw to the removal of abandoned or stolen cars, and cars left after traffic accidents or like casualties. Yet another category was cars constituting evidence in criminal matters.

In any of these instances a police officer from a police division would telephone one of the tow companies — the plaintiff was but one of a number of companies engaged in

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this line of work — and notify it of the location of the car to be towed. A company was not obligated to act in response to any call received but customarily it would respond if its equipment was then available. The plaintiff towed “hundreds” of cars during the period in question.[4] In by far the larger number of cases the car owners, after doing what was necessary to discharge any violations, would appear at the company’s storage lot, pay the towing and storage charges,[5] and remove their vehicles,[6]
the city not being expected to play any part. In a relatively few cases the owners did not turn up and the cars accumulated charges. The 104 cars involved in the present lawsuit were thus unclaimed; a breakdown by the categories in which the cars fell is given in the margin.[7]

The plaintiff asserted in this lawsuit that the city was responsible for payment of the charges accumulated on these vehicles, but we agree with the judge below that there was no legal basis for that assertion. The measure of the case lies in the finding of the master that “[n]o express conversation or communication ever occurred between City of Boston officials and plaintiff regarding payment for towing and storage of motor vehicles.” No doubt it was most

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imprudent of the parties not to have entered into an express contract about vehicles that would remain in the plaintiff’s hands, for it was plainly foreseeable that some might be so stranded. That the parties were neglectful, however, did not repair the absence of the elements, fixed by statutes, which were essential here to the formation of a contract casting liability on the city: a public bidding procedure, as the estimated cost of the contemplated work might exceed $2,000;[8] a writing and other formalities as required for a contract of that size;[9]
an official acting for the city who was authorized thereunto;[10] and a prior

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appropriation to which the claimant can point (there being no “extreme emergency” warranting an exception).[11] As was said in Adalian Bros. v. Boston, 323 Mass. 629, 632 (1949), those who deal with the city of Boston are “bound by the statutory regulations as to the manner in which the city [can] legally make contracts,” and these limitations “cannot be evaded by first rendering services or furnishing supplies without an express contract and then claiming under an implied contract for work performed or for goods sold and delivered. In such cases there is no implied contract.” See Sancta Maria Hosp. v. Cambridge, 369 Mass. 586, 595 (1976); Lord v. Winchester, 355 Mass. 788, 789 (1969); Lowell v. Massachusetts Bonding Ins. Co., 313 Mass. 257, 272 (1943); Morse v. Boston, 253 Mass. 247 (1925) McGovern v. Boston, 229 Mass. 394, 397-398 (1918).

The plaintiff has cited various statutes under which motor vehicles privately owned may lawfully be cleared from the city streets but, upon inspection, none of them goes to the point of charging the city with the costs of towing and storage at the suit of a company which answered the calls of police officers without the protection of a contract.[12]
Judgment affirmed.

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