Sirois v. Town of Frenchville

WATHEN, Justice.

The plaintiff, Roland Sirois appeals from a judgment of the Superior Court (Aroos-took County), which granted summary judgment to the defendant Town of Frenchville. Plaintiff’s action sought to impose liability upon the defendant municipality on either a contract or an estoppel theory for the Town’s failure to purchase, maintain and operate a sewage treatment facility. The Superior Court found that the action was barred by the Statute of Frauds. While we do not concur with that finding, we affirm the judgment on the grounds that the evidence submitted on the motion for summary judgment establishes as a matter of law that the defendant Town is not liable to the plaintiff either by contract or promissory estoppel.

The pleadings, affidavits and deposition submitted in connection with the motion for summary judgment establish the following uncontroverted facts. Early in 1975, plaintiff Roland Sirois owned land in French-ville, Maine and began to develop the land into the Queens Village Subdivision, a housing development. In the Spring of that year Sirois went to the Farmers Home Administration (FHA) seeking financing for the construction of a sewer system for the development. The FHA informed Sirois that before they would consider financing a private individual, he (Sirois) would have to have an agreement with the Town of Frenchville (Town) whereby the Town would take responsibility for operating and maintaining the sewer system. On May 12, 1975, Clovis Daigle, after discussions with Sirois, and being one of three town selectmen in Frenchville, wrote a letter to Sirois stating that the Board of Selectmen accepted on behalf of the Town the responsibility of “maintaining and operating the proposed sewage treatment facilities.” At a meeting of the entire Board of Selectmen, held on May 12, 1975, the Board agreed to accept responsibility on behalf of the Town for “maintaining and operating the subdivision road ....” In June, Sirois spoke to the FHA again and concluded he ought to seek public FHA financing through the Town.

A special town meeting was held on July 2, 1975 at which the citizens of Frenchville approved by voting Article 4 of the agenda. Article 4 read as follows:

“To see if the town will instruct the Selectmen to apply to Farmers Home Administration and to secure loans or issue bonds in connection herewith for $50,-000.00 for funds to meet Federal and State Grants obtained for the construction of Sewer and Sewerage treatment facilities for the Town of Frenchville.”

The land on which the sewer system was built was never accepted by the Town or voters even though a deed was given to the Town and recorded. Sirois completed the sewer system for licensing purposes between July and September of 1975; further sewer lines were added in 1976. During that same time, a lawyer and an engineering company paid by Sirois prepared the Town’s application to the FHA and Department of Environmental Protection (DEP) for a license. On August 12,1975, Florence Michaud, Town Manager of Frenchville, wrote a letter to Sirois repeating the statements in Clovis Daigle’s letter of May 12, 1975.

The DEP granted the Town a license in September of 1975. The FHA approved the financing in the early part of 1977 and requested that the voters amend their authorization in Article 4 to $35,000.00. At a special town meeting the voters refused to amend Article 4. At the present time, the Town has never operated or maintained the system. In February of 1980, Sirois filed suit against the Town, and in his complaint alleged breach of an agreement by the Town to pay the costs of construction, to operate, and to maintain the sewer system. Pleading in the alternative, Sirois also sought damages on the theory of promissory estoppel. The defendant Town of Frenchville, in their answer to the complaint denied that any contract, agreement or promise ever existed between the Town and Sirois.

*294After substantial factual development had occurred by way of deposition, admission and affidavit, the defendant moved for summary judgment in its favor. The defendant argued alternatively: first, that there was no contract, second, that any offer or acceptance on the part of the Town was unauthorized and third, assuming that there was a contract, it was barred by the Statute of Frauds. The justice below did not explicitly rule upon the existence of a contract vel non nor the issue of authority but rather assumed the existence of such a contract and found it to be unenforceable because of non-compliance with the Statute of Frauds. His reasons, though not fully stated, seem to be that as the defendant urged, the agreement was either a contract for the sale of an interest in land or an agreement not to be performed within one year and no sufficient, signed memorandum existed as required by the Statute of Frauds. Upon examining the record on appeal we are satisfied that the Statute of Frauds is inapplicable to the facts of this case. Nonetheless, we affirm the judgment below because we conclude that as a matter of law no contract or agreement existed between Sirois and the Town and that no promise was made by the Town to Sirois upon which to support the plaintiff’s promissory estoppel claim.

The plaintiff relies on the following documents and events to evidence the alleged agreement or promise: Clovis Daigle’s letter of May 12, 1975; Florence Michaud’s letter of August 12, 1975; the minutes of the May 27,1975 Board of Selectmen meeting; the Town’s correspondence with and applications to the FHA and DEP; approval of the project by the Town Planning Board; approval by the voters of French-ville of Article 4 at the town meeting on July 2, 1975. We find that as a matter of law none of the above documents and events evidences a contract, agreement or promise between the Town and Sirois.

The letter written by Clovis Dai-gle is insufficient to bind the Town of Frenchville. 30 M.R.S.A. § 2316 (1978) provides in pertinent part:

“It is the intention of this subchapter that the board of selectmen as a body shall exercise all administrative and executive powers of the town .... ” (emphasis added)

This Court has previously held that one member of a board of selectmen cannot bind a town to a contract unless his authority to act alone is proved or his actions subsequently ratified. See Prest v. Inhabitants of the Town of Farmington, 116 Me. 8, 11, 99 A. 653 (1917); Inhabitants of Richmond v. Johnson, 53 Me. 437, 438 (1866). All persons contracting with town or city officers must take notice at their peril of the extent of the authority of such officers. It is not the town’s burden to establish the absence of authority but the plaintiffs burden to prove the authority. See Van Buren Light & Power Co. v. Inhabitants of Van Buren, 116 Me. 119, 123, 100 A. 371, 372 (1917). In the context of the present case a material issue of fact must be raised as to authority or ratification if summary judgment is to be avoided. The record is devoid of any suggestion that Daigle was authorized to act alone or that his actions were subsequently ratified. Similarly, the letter written by Florence Michaud had no binding effect on the Town of Frenchville. The powers and duties of a town manager are set forth in 30 M.R.S.A. § 2317 (1978). The legislature has listed in that statute fourteen specific acts which the town manager is authorized to do; absent from that list is the power to contract on behalf of the Town. Although under that statute the town manager is authorized to act as purchasing agent for the Town, her letter of August 12, 1975, does not indicate that she was purchasing for the Town, but rather that she was accepting responsibility for the operation and maintenance of the sewer system.

The minutes of the meeting of the Frenchville Board of Selectmen held on May 27, 1975 do not indicate that the alleged agreement or its terms were ever discussed and consequently, the minutes cannot be said to evidence a contract with the Town or to ratify Clovis Daigle’s earlier *295action. The minutes of the meeting reveal that the topic of discussion at the meeting was the acceptance of responsibility for operating and maintaining the subdivision roads, not the sewer system or treatment facility.

The Town’s correspondence with and applications to the FHA and DEP do not disclose any contract or agreement between the Town and Sirois. These documents constitute applications, not a contract, agreement or promise. We also reject the argument that because the Town made the applications it impliedly accepted or ratified the alleged contract. At that point in time, no contract existed to be accepted and nothing in the correspondence or applications ratified the actions of Clovis Daigle. In addition approval of the project by the Town Planning Board does not bind a Town to a contract with the party seeking approval.

Finally, the plaintiff relies on the voters’ approval of Article 4 at the Town meeting. The action taken by the voters did not give rise to an agreement or promise by the Town to pay the costs of constructing, operating, and maintaining the sewer system. On the contrary, by the plain meaning of Article 4, the citizens only authorized the Board of Selectmen to seek the initial financing necessary for the sewer system project. This approval, without further or subsequent action by the voters, as a matter of law did not create a contract, or agreement between the Town and Sirois or constitute a promise by the Town to Sirois. Consequently, none of the documents or events upon which the plaintiff relies evidences a contract or agreement with the Town and his cause of action for breach of contract fails for lack of the existence of a contract. Further, plaintiff’s cause of action based on promissory estoppel must also fail because one of the elements of such a claim is a promise made by the party being sued, and no such promise by the Town was made here. See Chapman v. Bomann, Me., 381 A.2d 1123, 1127 (1978).

We affirm the grant of summary judgment on the grounds that as a matter of law no contract existed nor is the Town of Frenchville estopped from denying its liability.

The entry is:

Judgment affirmed.

McKUSICK, C. J. and GODFREY, NICHOLS, JJ., and DUFRESNE, A. R. J., concurring.