Buccella v. Schuster

• Decision Date: 03 February 1960
• Citation: 340 Mass. 323,164 N.E.2d 141
• Parties: Rosario A. BUCCELLA v. Gerald SCHUSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 141

164 N.E.2d 141

340 Mass. 323

Rosario A. BUCCELLA v. Gerald SCHUSTER.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 1959.

Decided Feb. 3, 1960.

William B. Shevory, Boston, for plaintiff.

Morris J. Gordon, Lynn, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.

WILKINS, Chief Justice.

This action of contract is to recover for labor performed and equipment rented pursuant to an oral contract for blasting ledge on the defendant's premises in the city of Newton. There was evidence that between August 3 and September 22, 1956, the plaintiff worked thirty-six days; that he did not obtain a bond under G.L. c. 148, § 19 or § 20A, ¹ until September 6; and that he did not obtain a blasting permit from the city under G.L. c. 148, § 10A, ² at any time. The trial judge found that the bond and permit were not obtained, but refused to rule that recovery was barred, and found for the plaintiff. The Appellate Division dismissed a report. The defendant appealed.

The judge ruled that the contract was not illegal in the sense that it was based on an illegal consideration; that the work was capable of being performed in a legal manner; that the 'alleged illegal acts entered neither into the promise nor into the consideration'; and that although the contract was performed in an illegal way, it was not necessarily illegal.

The Appellate Division took the position that there was no evidence of the happening of any of the dangers or evils which G.L. c. 148 was intended to guard against; that the work having been completed, there was no possibility of damage or the happening of any evil which the statute sought to prevent; and that the trial judge properly ruled that the failure to obtain the bond and permit was 'only an incidental part of the performance of the contract,' citing Hawes Elec. Co. v. Angell, 332 Mass. 190, 191-192, 124 N.E.2d 257. But in that case, with reference to the installation of an oil burner, it was said, 332 Mass. at pages 191-192, 124 N.E.2d at page 259, 'Clearly the plaintiff violated the regulations by failing to obtain any permit for installation or to furnish any certificate of completion. Therefore the plaintiff cannot recover for its services in installation. Tocci v. Lembo, 325 Mass. 707, 92 N.E.2d 254. And if the contract was an entire one for burner and installation, a violation of the regulations as to installation will prevent the plaintiff from recovering anything on the entire contract, at least 'if the illegality was serious or more than an incidental part of the performance.' Williston, Contracts (Rev. ed. 1938) § 1761.' Whether 'the illegality [is] serious or more than an incidental part of the performance' is a question of law. Hawes Elec. Co. v. Angell, supra, 332 Mass. 191-192, 124 N.E.2d 259. Although phrased in terms of illegality, the decision may be supported on the ground that there was a failure of performance on the part of the plaintiff, in that he did not furnish a certificate of completion.

In Tocci v. Lembo, 325 Mass. 707, 92 N.E.2d 254, which was cited by neither the trial judge nor the Appellate Division, it was held that a builder could not recover for the performance of a lawful contract with a landowner where a dwelling house was erected in violation of Federal regulations without obtaining from the housing authorities authorization for such construction or the necessary 'priorities' for the materials used. The opinion states (325 Mass. at page 709, 92 N.E.2d 254) that no case had been found in this Commonwealth in which recovery was barred because the illegality was not in the contract but in its performance. That case may be supported on the ground that there was a strong public policy against unauthorized building operations interfering with the Veterans' Emergency Housing Program.

We do not reach the conclusion that blasting without complying with the requirements of a bond and a permit is so repugnant to public policy that the defendant should receive a gift of the plaintiff's services. The defendant received all to which he was entitled under his contract. We think that this was falls within Fox v. Rogers, 171 Mass. 546, 50 N.E. 1041, which was an action to recover for labor and materials furnished in laying a drain. The pipes laid were not those required by statute. In upholding a finding of the trial judge for the plaintiff, Holmes, J., speaking for a majority of the court, said in 171 Mass. at page 547, 50 N.E. at page 1042: 'We shall not trouble ourselves about the construction of the statute and ordinances, because it does not follow that the plaintiff cannot recover if he broke them. There is no policy of the law against the plaintiff's recovery unless his contract was illegal, and a contract is not necessarily illegal because it is carried out in an illegal way. ...