Fox v. Rogers

• Decision Date: 02 July 1898
• Parties: FOX v. ROGERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 546

50 N.E. 1041

FOX v. ROGERS.

Supreme Judicial Court of Massachusetts, Suffolk.

July 2, 1898

COUNSEL

F.C. Manchester, for plaintiff.

Foster Rogers, for defendant.

OPINION

HOLMES J.

This is an action of contract, to recover for laying a drain from two houses of the defendant to a private sewer in the street in front, for the purpose of draining the surface water of the cellars, and for no other purpose. The judge before whom the case was tried found for the plaintiff, and it is conceded that the finding was warranted, unless "the maintenance of the present action is contrary to the policy of the law." The principal matter relied on is that the pipes within and outside the building were Akron earthenware pipes and not cast iron, as required for drain pipes by St.1892, c 419, § 125 (see, also, Id. § 135; Rev. Ord. Boston 1892, c. 42, § 18), and that even if, as the plaintiff understood and still contends, these provisions do not refer to pipes intended only for surface drainage, yet the plaintiff took up and relaid a part of a private drain outside, with which his pipes connected, which was a drain for sewage, and was within the statute and ordinance. It also is argued (with less confidence, we take it) that the plaintiff's work, or part of it, was plumbing, within the meaning of the ordinances, and required a permit, under said chapter 42, § 16, and, also, could not be done lawfully except by a registered plumber. Id.; and see chapter 17, § 1. And finally it is objected that whereas the plaintiff only had a permit to occupy a portion of the street, not exceeding 25 feet in length in front of the buildings, he did in fact open a different part of the street for 58 feet, in breach of Rev. Ord. c. 43, § 57.

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. Barry v. Capen, 151 Mass. 99, 100, 23 N.E. 735. The judge was warranted in finding that the defendant employed the plaintiff to build a suitable drain, and left all details to the plaintiff's discretion, simply promising to pay for the job when finished, in consideration of the plaintiff's promise to do it,--a contract lawful on both sides. It is true that the plaintiff...