O'brien v. Shea
| Decision Date | 16 May 1911 |
| Parties | O'BRIEN v. SHEA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
This was an action for the unpaid rent of a cottage. The plaintiff introduced evidence that the defendant agreed to pay $100 rent; while the defendant introduced evidence that plaintiff's cottages were mortgaged to one McNeil, and that on his suggestion, a number of the cottages being vacant, the defendant was allowed to occupy one rent free to attract other tenants. There was further evidence that the plaintiff intended and had attempted to hold McNeil for the rent. The uncontradicted testimony showed that the alleged contract, if made, was made on Sunday; but the point was not raised by the pleadings or at the trial, except so far as implied in the first instruction, asked by defendant, and refused. The following instructions, requested by the defendant, were refused:
'(1) Upon all the evidence the plaintiff is not entitled to recover.'
'(3) If the jury find that the plaintiff's husband as her agent had general charge of the property in question, and permitted McNeil to arrange for the occupancy of the same by the defendant, holding and intending to hold said McNeil for any sum that might be due for the occupancy of the premises in question, the plaintiff is not entitled to recover.
'(4) If the plaintiff or her husband as her agent intended to hold Mr. McNeil accountable as mortgagee in possession or otherwise for the rent of the property in question during its occupancy by the defendant, the plaintiff is not entitled to recover.'
'(7) If the jury find that no bill was ever rendered the defendant, and the plaintiff's husband as her agent attempted to recover the amount in question in a suit against McNeil begun in August, 1905, and that the present action was not begun until over three years after defendant left the premises, they may consider these circumstances upon the question of whether the plaintiff intended to hold McNeil or the defendant for the rent in question.
'(8) If the jury find that the plaintiff intended to hold McNeil for the rent in question, she cannot recover in this action.'
J. A. McGeough, for plaintiff.
I. R Clark and G. F. Ordway, for defendant.
There was no error in the court's refusal to rule absolutely that the plaintiff was not entitled to recover. The defendant's argument as to this rests entirely upon his claim that according to the uncontradicted evidence the contract of hire between the parties was made on Sunday and so could not support an action. R. L. c. 98, § 2; St. 1904 c. 460, § 2; Day v. McAllister, 15 Gray, 433; Stewart v. Thayer, 168 Mass. 519, 47 N.E. 420, 60 Am. St. Rep. 407; Horn v. Dorchester Mutual Ins Co., 199 Mass. 534, 85 N.E. 853. But even if this position were open to him, the instruction requested could not have been given; for although the defendant might have entered upon his occupation of the plaintiff's premises under a void agreement, yet by reason of his subsequent occupation under the right of the plaintiff he could have been held liable to her, not on the ground that the void agreement had been ratified so as to be in effect from the beginning, but because it could be found from the conduct of the parties that they had subsequently without formality adopted its provisions. Miles v. Janvrin, 200 Mass. 514, 86 N.E. 785; Shepley v. Henry Siegel Co., 203 Mass. 43, 88 N.E. 1095.
We need not consider whether in that case the plaintiff could recover the sum stipulated for on Sunday or whether her recovery could be only for the fair value of the defendant's occupation (Cranson v. Goss, 107 Mass. 439, 441, 442, 9 Am. Rep. 45), for this point was not taken at the trial, no question of pleading was raised, and the only exceptions were to the refusal to give the defendant's first, third, fourth, seventh and eighth requests.
The other requests were rightly refused. If there was such an agreement between the parties as the plaintiff claimed, the relations between the plaintiff and the mortgagee became immaterial. Those relations were no doubt important for the jury to consider in determining what if any agreement or understanding had been reached between the plaintiff and the defendant; but her intention as to what claim she would make on the mortgagee was not necessarily decisive of the issue in this case. The refusal to give the third, fourth and eighth requests was right.
Nor was it wrong to refuse to give the seventh request. The defendant could not require the judge to single out the circumstances favorable to the defence and instruct the jury to consider these. It might have seemed to the jury to make the intention of the plaintiff as to the mortgagee the controlling feature of the case, whereas it was really only one of the circumstances to be weighed. Green v. Boston & Lowell R. R., 128 Mass. 221, 227, 35 Am. Rep. 370; Delaney v. Hall, 130 Mass. 524; Bugbee v. Kendricken, 132 Mass. 349; Murphy v. Boston & Albany R. R., 133 Mass. 121, 126; Hopcraft v. Kittredge, 162 Mass. 1, 37 N.E. 768; Lakeside Manuf. Co. v. Worcester, 186 Mass. 552, 558, 559, 72 N.E. 81. As in the case last cited, this instruction might have confused and misled the jury.
Nor was the judge required to pick out uncontroverted facts and rule upon them, for the disputed facts were material. Pierce v. O'Brien, 189 Mass. 58, 61, 75 N.E. 61.
The defendant complains that the verdict for the plaintiff rested only upon the finding that he occupied her cottage under an express agreement with her for the payment of rent, and that on the evidence this agreement was made on Sunday, and so that the verdict cannot be sustained. But this point was not brought to the attention of the judge at the trial or taken in any way in the superior court. The whole case is not before us. We can deal only with the exceptions that were saved and allowed, and can consider only the questions raised by these. R. L. c. 173, § 117; Littlefield v. Gilman, 207 Mass. 539, 93 N.E. 809; Bond v. Bond, 7 Allen, 1, 6, referred to in Webb v. Hanley, 206 Mass. 299, 305, 92 N.E. 429; McRae v. Locke, 114 Mass. 96, 97; Rich v. Lancaster Railroad, 114 Mass. 514; Jarvis v. Mitchell, 99 Mass. 530, 532; Com. v. Althause, 207 Mass. 32, 45, 93 N.E. 202. Such cases as Parrott v. Mexican Central Ry., 207 Mass. 184, 190, 93 N.E. 590, and Vermilye v. Western Union Tele. Co., 207 Mass. 401, 93 N.E. 635, do not help the defendant; for this point was not only not referred to by counsel or raised at the trial, but it was not open on the pleadings.
A different rule may be applied in equity where the whole case comes before this court on appeal, especially when the illegality amounts to a very high crime, as in Dunham v. Presby, 120 Mass. 285. No contention can be made in this court upon a point which was not taken in the superior court. Colvin v. Peabody, 155 Mass. 104, 29 N.E. 59; Barker v. Lawrence Manuf. Co., 176 Mass. 203, 57 N.E. 366; Henderson v. Raymond Syndicate, 183 Mass. 443, 446, 67 N.E. 427; Howard v. Fall River Iron Works, 203 Mass. 273, 277, 89 N.E. 615. We cannot set aside the verdict on this ground.
But it is said that the plaintiff was allowed to go to the jury upon her claim that an express contract had been made between her and the defendant, although it then appeared that the contract was made on Sunday, and so was illegal and void. The contention is that no court will consciously lend its aid to the enforcement of an illegal contract. Claflin v. United States Credit System, 165 Mass. 501, 503, 43 N.E. 293, 52 Am. St. Rep. 528, and cases cited. It is said that for this reason, although that defence was not pleaded and the point was in no way called to his attention, the judge at the trial ought of his own motion to have interfered and to have fuled that the action could not be maintained upon the express contract, and that this court ought now, although having before it only specific exceptions which, as we have seen, do not raise this point, to order a new trial in order that the error of the judge of the superior court may be corrected. It is at least doubtful whether this court has the power to take such action under the provisions of R. L. c. 156, § 3. Com. v. Scott, 123 Mass. 418, 420. But we need not determine that question; for in our opinion the judge at the trial was not bound to make the ruling contended for.
The illegality in this case was the violation of the statute already referred to which forbids the doing of any work or business on Sunday. This is a valid police regulation ( Com. v. Has, 122 Mass. 40), and if the defence is properly pleaded, is a complete bar to the enforcement of any ordinary contract made on that day.
And it may be assumed that the judge at the trial might of his own motion have ruled upon the question in favor of the defendant, if he had seen fit to do so, and that the plaintiff would then have had no right of exception. But the defendant, not having raised the question, could not require this to be done. As was said by Gray, C.J., in Cardoze v Swift, 113 Mass. 250, 252, the defendant had no right to offer evidence of such illegality, 'or even to avail himself of it when disclosed in the plaintiff's testimony, if the court [did] not refuse to entertain the case.' Granger v. Ilsley, 2 Gray, 521; Bradford v....
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