Burrage v. City of Boston

These cases are brought under a form of contract which is the same in all of them, and which has been very fully considered in Aspinwall v. Boston, 197 Mass. 441, Tappan v. Boston, 191 Mass. 441, Averill v. Boston, 193 Mass. 488, and Boston Water Power Co. v. Boston, 194 Mass. 571. The plaintiffs have all affirmed the contracts by their action, and the only question presented is whether they are entitled to interest upon the several sums allowed to them as damages for the taking of their land, before the time when these damages were payable under the terms of the contracts, namely, the time when the balance due after making an offset of the amounts assessed upon the land by the city for betterments had been determined.

The contract, except as changes were made in the names of streets for the different places in which it was used, is given in full in the opinion in Aspinwall v. Boston, 191 Mass. 441. In the part most material, it is as follows: “We, . . . in consideration of the immediate laying out and construction of said proposed street at a width of fifty feet, under the provisions of c. 323 of the acts of the year 1891 and acts in amendment or addition thereto, and of any assessments which may be laid upon our several estates for the cost of said laying out and construction being delayed until the damages caused to us severally by the taking of said land and the cost of construction of said street shall be determined, and of said damages being offset against the proportionate part of said cost which may be levied upon our respective estates, agree that the payment for the said damages shall be delayed until the balance due from us severally after making said offset has been determined.”

In Imbescheid v. Old Colony Railroad, 171 Mass. 209, 210, the court said that there should be an allowance of “ interest because the damages were not paid when due.” In Pegler v. Hyde Park, 176 Mass. 101, 103, is this language : “ In cases of this kind, interest is allowed upon the damages ascertained from the time when they are payable, which ordinarily is the time of taking.” Interest is never allowed upon the value of land so taken on the ground that it is included in a contract, or is a stipulated part of a debt, but only as damages for the failure to pay the money when it ought to be paid.

The rights of the parties in these cases depend upon contracts *583into which they entered. Seemingly, the plaintiffs were owners of unimproved land which would continue to be unavailable for years until streets should be laid out and constructed. At that time there was a statute (afterwards held unconstitutional) which purported to authorize the assessment of the entire cost of laying out and constructing streets in Boston upon the estates specially benefited. These contracts assumed that there would be a balance due to the city from these abutters for betterments, after setting off all the land damages. Boston Water Power Co. v. Boston, 194 Mass. 571, 574. The plaintiffs accordingly agreed that these amounts might be set off against each other, and that the payment for the land damages should be delayed until this balance should be ascertained. These damages were not payable until that time, and there is no ground for claiming interest, except in those cases where the land damages exceed the amount assessed for betterments, and in those only for the time since the balance was determined. A fair construction of the contract is that no claim should be made on either side until the time had come for setting off these amounts against each other and the balance had been struck. Until then neither party would be in default for non-payment, and there would be no ground for a claim of interest as damages from either party for the delay in making payment.

This has been assumed to be the true construction of the contract in former cases, and further consideration confirms us in our original view.

The result is that, in each of the cases, judgment is to be entered on the finding.

So ordered.