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Irving v. Town of Clinton
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 112
Docket:	Ken-97-623
Submitted
 on Briefs:	April 24, 1998
Decided:	May 14, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.




KENNETH IRVING, JR. v. TOWN OF CLINTON
DANA, J.

	[¶1]  Kenneth Irving, Jr. appeals from the summary judgment entered
in the Superior Court (Kennebec County, Kravchuk, C.J.) in favor of the
Town of Clinton on Irving's breach of contract claim.  Because we conclude
that an express condition precedent to the contract did not occur, we affirm
the judgment.
	[¶2]  The underlying facts in this case are not in dispute.  On June 19,
1996, Irving and a majority of the Town's selectmen signed a document
entitled "Snow Plowing and Road Sanding Contract" which provided that
Irving would maintain the Town's roads from October 1996 to May 1997 in
return for $107,723.96.  Paragraph 13 of the document states:
13.	VOTER APPROVAL:
This contract is contingent upon voter approval (Article 11,
Highway Dept. Account dated June 25, 1996).
The Town held its 1996 annual town meeting on June 25, 1996, at which
the residents voted on Article 11, which stated in full:  "To see if the town
will vote to raise and appropriate the sum of $236,503.00 for the Highway
Department Account."  The annual town report, which had been distributed
to residents and was available at the meeting, contained a detailed
breakdown of the highway department budget, including an appropriation
for $107,860 for plowing.  At the meeting a voter moved to amend Article
11 to reduce the snow removal line from $107,860 to $99,999.  The
amendment passed and the Article was approved as amended.  The Town
then offered Irving the snowplowing contract at the reduced amount, which
he refused, opting instead to file the breach of contract lawsuit that is the
subject of this appeal.
	[¶3]  The Town moved for a summary judgment, and the court
concluded that because the selectmen did not have the authority to contract
on behalf of the municipality under the Town's governmental structure, no
contract was ever entered into that could be the subject of a breach.  The
court essentially held that the proposed contract constituted an offer by
Irving that was rejected by the voters and that Irving never accepted the
Town's counteroffer of $99,999.  Accordingly, the court entered a summary
judgment for the Town, and this appeal followed.
	[¶4]  We need not address Irving's argument that the Town selectmen
possess the authority to enter into contracts on behalf of the Town to carry
out necessary governmental functions such as snowplowing.{1}  Even if such
authority exists the contingency provided for in paragraph 13 of the parties'
contract was never met.  The contract was made expressly contingent on
the approval of the voters at the annual town meeting.  The voters did not
approve the contract as written and appropriated a lesser amount of money
for snow removal.  An elementary rule of contract law is that the non-
occurrence of a condition discharges the parties from their duties under the
contract.  Restatement (Second) of Contracts § 225 (1981).  Because the
Town's duty to pay Irving for his snowplowing services was discharged by
the failure of the Town's voters to approve the contract as written, the court
properly entered a summary judgment in favor of the Town.
	The entry is:
				Judgment affirmed.
                                                                 
Attorneys for plaintiff: Jonathan G. Rogers, Esq. Weeks & Hutchins P O Box 417 Waterville, ME 04903-0417 Attorneys for defendant: Patrick J. Scully, Esq. Joan M. Fortin, Esq. Bernstein, Shur, Sawyer & Nelson, P.A. P O Box 9729 Portland, ME 04104-5029
FOOTNOTES******************************** {1}. Cf. State v. Town of Franklin, 489 A.2d 525, 528 (Me. 1985) (vote of residents at town meeting to raise funds to relocate town dump did not authorize selectmen to enter into a consent agreement with the State that provided for monetary penalties for failure to comply with Board of Environmental Protection directives regarding the dump).