Curtis v. Portsmouth , 67 N.H. 506 ( 1893 )

The first question that arises is, Was there a contract completed between the Storer post and the city of Portsmouth? Although the ordinance passed by the city councils erroneously recited that the lease had been assigned to the city, yet by its terms the city offered to "assume and become responsible for the faithful performance of all and every portion of the lease." A presentation of a copy to Storer post was a proposition for a contract on the part of the city. When the post accepted this offer, as they did by their vote to assign the lease to the city, and by assigning it and delivering the assignment to the city clerk, it became a completed contract between the parties. Hunneman v. Grafton, 10 Met. 454.

The defendants insist that the ordinance contains no offer for the use by the plaintiffs of the upper hall free of rent. But this position is not sustained by a reasonable construction of the ordinance. It was an offer to "assume and become responsible for the faithful performance of all and every portion of the lease," to remodel and improve "the upper hall as a memorial hall and for the use of Storer post," and to pay the rent reserved by the lease. There is nothing in the language of the ordinance from which it can be inferred that the proposition did not contain every stipulation which the city intended to require. In the absence of any provision for the payment of rent by the plaintiffs to the city for the use of the upper hall, it is plain the city did not intend to require the payment of rent. The right of the post to the use and control without rent of the upper floor of the academy building was a sufficient consideration for the contract. The post had a property interest in the lease, and they parted with it by the assignment in consideration of receiving the free use of the upper hall instead of a sum of money. The one is as good a consideration as the other.

The contract is not within the statute of frauds. The ordinance and the assignment of the lease, taken together, constitute the contract, and both being in writing, they are sufficient to bind the city and take the contract out of the statute. Dill. Mun. Corp. 449; Argus Co. v. Albany,55 N. Y. 495; Chase v. Lowell, 7 Gray 33; Johnson v. Trinity Church Society, 11 Allen 123, 127; Tufts v. Plymouth Gold Mining Co., 14 Allen 407, 412.

The contract was not ultra vires. The city had the power under the statute to provide a public library and reading-room, and a memorial building. P. S., c. 40, s. 4. A contract for that purpose made by the city would be within the scope of its powers. The fact that a part of the building was to be occupied by the Storer post does not make the contract ultra vires. The city made the contract in good faith, for the purpose of providing a memorial building and a suitable place for a library, and the occupation by the post is incident and subordinate to this general purpose. The case is similar to that of a municipality's leasing parts of a town or city hall, not needed for municipal purposes, for stores or offices. Spaulding v. Lowell, 23 Pick. 71, French v. Quincy, 3 Allen 9.

The court cannot revise or control the decision of the city councils as to the propriety of selecting any particular lot for a library site or a memorial building, or in regard to what kind of building they shall have, or whether they shall have any, as those matters are within the discretion of the city officials and are to be determined by them. Kelley v. Kennard,60 N.H. 1. When they have decided these questions, and have entered into a valid contract in regard to the matter, the court will enforce it the same as and other contract. The plaintiffs are interested in having it enforced to the extent that the city shall be required to take the lease of the building and perform the covenants of the lease, give them the free use of the upper hall during the term specified, and have the building remodelled and improved so far as the improvements relate to and affect the upper hall. So far as the contract relates to the lower part of the building and its use for a library, the plaintiffs are not interested more than the rest of the public. They appear simply for the protection of their own interests.

The defendants claim that equity will not enforce a contract to repair or rebuild, and that the contract in reference to remodelling and repairing the building is too indefinite to be specifically enforced. Without deciding whether the contract in regard to repairing or remodelling the building can or should be specifically enforced against the city, we think a pecuniary compensation to Storer post for a breach of that portion of the contract relating to the changes and improvements in the upper hall will furnish them an adequate remedy.

Case discharged.

DOE, C. J., did not sit: the others concurred.