Eastern Expanded Metal Co. v. Webb Granite & Construction Co.

• Decision Date: 14 May 1907
• Citation: 195 Mass. 356,81 N.E. 251
• Parties: EASTERN EXPANDED METAL CO. v. WEBB GRANITE & CONST. CO. WEBB GRANITE & CONST. CO. v. EASTERN EXPANDED METAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 356

81 N.E. 251

EASTERN EXPANDED METAL CO. v. WEBB GRANITE & CONST. CO.

WEBB GRANITE & CONST. CO. v. EASTERN EXPANDED METAL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 14, 1907

COUNSEL

Clift Rogers Clapp and William H. Best, for Eastern Expanded Metal Co.

Charles W. Bartlett, Elbridge R. Anderson, and Isaac F. Paul, for Webb Granite & Const. Co.

OPINION

KNOWLTON C.J.

These are cross-actions growing out of the furnishing of labor and materials by the plaintiff in the first action, hereinafter called the plaintiff, for the defendant in that action, which is hereinafter called the defendant, in the erection of the Hotel Somerset on Commonwealth avenue in Boston. The first suit was brought upon an account annexed, and the second is for a breach of a contract in writing under which the work was done. This contract called for the construction by the plaintiff of the steel frame, the floors, the roof and some other parts of the building, 'in conformity with the requirements of the statute regulating the construction maintenance and inspection of buildings in the city of Boston, and to the satisfaction of the building commissioner of said city,' all as shown in the drawings prepared by the architect, etc. Section 64 of St. 1892, p. 489, c. 419 regulating the construction of buildings in the city of Boston, forbids under a penalty the erection of a building of the class to which the Hotel Somerset belongs, with a roof having a pitch of more than 20 degrees. The drawings of the architect made the roof of this building have a pitch of 30 degrees. The contract, by a general provision, required that the building should be erected in conformity with this statute, but in the particular provisions as to the roof it called for a building whose erection was forbidden by the statute. Out of this part of the contract relative to the roof the controversy between the parties has arisen.

The jury, in answer to a question, have found by their verdict that the plaintiff, when the contract was executed, did not know that the agreement called for a roof with a pitch of more than 20 degrees. The contract was executed on November 8, 1897, and on December 17, 1897, it was modified by a supplemental contract which does not affect the questions before us. On March 25, 1898, the plaintiff's attention having been called to the pitch of the roof, it wrote to the defendant in regard to it, and from that date until May 22, 1898, there were negotiations by letters and interviews between the parties in reference to this matter, to see if some arrangement could be made that would be satisfactory to both. On this last date, the defendant having finally insisted that the roof should be constructed with a pitch of 30 degrees according to the contract, and the plaintiff having declined to violate the law in this particular, the plaintiff discontinued work, and the defendant caused the construction to be completed by another party.

The presiding justice ruled that the contract was illegal, and that the defendant could not recover damages in the cross-action for the breach of it, nor avail itself of this breach as a defense to the plaintiff's claim in the original action. The exception of the defendant to this ruling presents the first question for our consideration.

While this statute was enacted in the interest of the public with a prescribed penalty for the violation of its provisions and while it gives jurisdiction in equity for its enforcement, we think that it plainly renders illegal the acts which it purports to prohibit, and that it forbids these acts, instead of prescribing regulations that are merely directory. In this respect the case is unlike Larned v. Andrews, 106 Mass. 436, 8 Am. Rep. 346, Learned v. Geer, 139 Mass. 37, 29 N.E. 215, and Bowditch v. New England Life Ins. Co., 141 Mass. 292, 4 N.E. 798, 55 Am. Rep. 474, and is like William Wilcox Mfg. Co. v. Brazos, 74 Conn. 208, 50 A. 722, Spurgeon v. McElwain, 6 Ohio, 442, 27 Am. Dec. 266, Shortall v. Fitzsimons & Connell Co., 93 Ill.App. 231, Stevens v. Gourley, 7 C. B. (N. S.) 99, and Stewart v. Thayer, 168 Mass. 519, 47 N.E. 420, 60 Am. St. Rep. 407. We are of opinion that the judge was right in ruling that the contract was not enforceable in favor of the defendant, either as a foundation for a cross-action or as a defense to the original action.

The next question is whether the jury could be permitted to find for the plaintiff on the account annexed, upon its disaffirmance of the contract under which the labor and materials were furnished.

It has been held in many cases that, where the matters called for in the contract that render it illegal do not involve moral turpitude, but are merely mala prohibita, and while the contract remains executory, either party may disaffirm it on account of its illegality and recover back money or property that he has advanced under it. If the contract has been executed the court will not relieve either party from the consequences of his own violation of law. But so long as it is entirely unexecuted in that part which the law forbids there is a locus penitentiae. The doctrine is stated very fully in White v. Franklin Bank, 22 Pick. 181. This rule is followed in Love v. Harvey, 114 Mass. 80, Atlas Bank v. Nahant Bank, 3 Metc. 581, and Morgan v. Beaumont, 121 Mass. 7. It is established in a long line of English cases. Hastelow v. Jackson, 8 B. & C. 221; Bone v. Ekless, 5 H. & N. 925; Taylor v. Bowers, 1 Q. B. D. 291; Hampden v. Walsh, 1 Q. B. D. 189; Strachan v. Universal Stock Exchange Co. [1895] 2 Q. B. 329; Hermann v. Charlesworth [1905] 2 K. B. 123-135. It is also adopted generally in America. Spring Co. v. Knowlton, 103 U.S. 49, 26 L.Ed. 347; Block v. Darling, 140 U.S. 234-239, 11 S.Ct. 832, 35 L.Ed. 476; Pullman Car Co. v. Central Transportation Co., 171 U.S. 138, 18 S.Ct. 808, 43 L.Ed. 108; Kiewert v. Rindskopf, 46 Wis. 481, 1 N.W. 163, 32 Am. Rep. 731; Urwan v. Northwestern National Life Ins. Co., 125 Wis. 349, 103 N.W. 1102; Skinner v. Henderson, 10 Mo. 205. Most of these cases relate...