Green v. Richmond

Citation369 Mass. 47,337 N.E.2d 691
PartiesBernyce GREEN v. Richard J. RICHMOND, executor.
Decision Date10 November 1975
CourtUnited States State Supreme Judicial Court of Massachusetts

James D. St. Clair, Boston (William Lender, Boston, and Kevin P. Curry with him), for defendant.

Francis J. DiMento, Boston (Thomas C. Cameron, Boston, with him), for plaintiff.



This is an appeal by the defendant from a judgment rendered against him as the personal representative of the estate of Maxwell Evans Richmond (the decedent). The action was in the nature of quantum meruit and sought recovery for services rendered by the plaintiff in reliance on the decedent's oral promise to leave a will bequeathing his entire estate to her.

A jury trial in the Superior Court resulted in a verdict for the plaintiff in the amount of $1,350,000. The defendant saved exceptions to the denial of his motion for a directed verdict, as well as to the admission of certain evidence, to portions of the instructions as given and to the refusal to instruct as requested; additionally, he appealed from the denial of his motion for a new trial. Subsequently, this court granted a request for direct appellate review.

The defendant does not now argue that the judge's instructions to the jury were erroneous. Rather, he argues that there was error in the admission in evidence of the probate inventory of the decedent's estate on the issue of damages. He also argues that a verdict should have been directed in his favor (1) because the contract was illegal, and (2) because, had the inventory been excluded from evidence, there would have been no evidence on the issue of damages. Finally, the defendant argues that it was error to deny his motion for a new trial because of excessive damages.

We conclude that the defendant's motion for a directed verdict was properly denied but that there must be a new trial, on the issue of damages only, because of error in allowing in evidence the probate inventory of the decedent's estate.

The facts are as follows: The plaintiff testified that she met the decedent in November, 1962, and shortly thereafter accepted his proposal of marriage. She was thirty-six years of age at the time, divorced, and had a fifteen-year old son; she was then employed as a secretary. The decedent was a wealthy, forty-nine year old bachelor whose holdings included licenses to operate three radio stations. Later the plaintiff became a stockbroker, earning about $20,000 a year.

About a year after they met, in October, 1963, the decedent stated that he had a 'mental hangup' about marriage and asked to be released from the engagement; he said, however, that if the plaintiff would agree to 'stay' with him, he would bequeath his entire estate to her at his death. The plaintiff agreed. There was other evidence directly corroborating the agreement. During the eight-year period between October, 1963, when bargain was made, and October, 1971, when the decedent died, there was evidence that the decedent, on several occasions, made statements to the plaintiff and other persons which could be found to be an acknowledgment by him of the original agreement. The last such occasion was on July 26, 1971, about three months before his death.

There was also evidence from which it could be found that the plaintiff kept her part of the agreement in reliance on the decedent's promise. There was detailed evidence of many services, of a social and domestic as well as of a business nature, performed by the plaintiff for the decedent over the eight-year period. There was evidence of many instances of sexual intercourse between the plaintiff and the decedent. The decedent died in October, 1971. The inventory value of his estate, which the judge permitted to be shown in evidence, was approximately $7,232,000.

1. It is clear that the oral agreement involved a promise to make a will, and as such was not binding. G.L. c. 259, § 5. Nevertheless, if the oral agreement were legal and not contrary to public policy, the plaintiff could recover the fair value of her services. Draper v. Turner, 339 Mass. 616, 619, 162 N.E.2d 49 (1959); Heil v. McCann, 360 Mass. 507, 511, 275 N.E.2d 889 (1971).

We consider first the defendant's argument that a verdict should have been directed in his favor on the ground that the contract was illegal. The argument offered is that as matter of law the agreement included sexual intercourse or cohabitation as part of the consideration, and that such a contract will not be enforced as against public policy. See G.L. c. 272, §§ 16, 18, as to criminality; Otis v. Freeman, 199 Mass. 160, 85 N.E. 168 (1908); Zytka v. Dmochowski, 302 Mass. 63, 65, 18 N.E.2d 332 (1938); Restatement: Contracts, § 598 (1932 and Supp.1935). Further the argument is that even if the agreement did not expressly include illicit terms, the unlawful performance of the bargain precludes recovery. Tocci v. Lembo, 325 Mass. 707, 710, 92 N.E.2d 254 (1950). 1

We conclude that there was no error in the denial of a directed verdict because these issues were properly submitted to the jury under appropriate instructions, and the jury obviously reached conclusions favorable to the plaintiff. 2

The defendant relies on several rules of law, which we state for purposes of analysis. Those rules are as follows. Where there is no conflicting evidence as to the terms of an oral contract, the construction of those terms is a matter of law for the judge rather than the jury. Bogash v. Studios, Inc., 303 Mass. 207, 208, 21 N.E.2d 235 (1939); Hiller v. Submarine Signal Co., 325 Mass. 546, 549--550, 91 N.E.2d 667 (1950). Thus, where the terms of the contract are not disputed, whether that contract is void as in contravention of public policy or otherwise illegal or in violation of law is a question of law for determination by the judge. Adams v. East Boston Co., 236 Mass. 121, 127, 127 N.E. 628 (1920); Reuter v. Ballard, 267 Mass. 557, 562--563, 166 N.E. 822 (1929). A party's admissions in testimony at the trial are binding on the party in the absence of other evidence more favorable to the party. Murphy v. Smith, 307 Mass. 64, 66, 29 N.E.2d 726 (1940); Perry v. Hanover, 314 Mass. 167, 170, 50 N.E.2d 41 (1943). Massachusetts law will not enforce, even indirectly through an action in quantum meruit, a contract to commit a crime. Otis v. Freeman, 199 Mass. 160, 85 N.E. 168 (1908); Zytka v. Dmochowski, 302 Mass. 63, 65, 18 N.E.2d 332 (1938), Massachusetts has a strong public interest in ensuring that its rules governing marriage are not subverted. French v. McAnarney, 290 Mass. 544, 546, 195 N.E. 714 (1935). Cf. Commonwealth v. Munson, 127 Mass. 459 (1879); Boltz v. Boltz, 325 Mass. 726, 92 N.E.2d 365 (1950). Even if, at the time of contracting, the parties to a contract did not mean the services to be rendered to include illegal conduct, there can be no recovery if the performance was in fact illegal, and the illegality was serious and not merely an incidental part of the performance of the agreement. Tocci v. Lembo, 325 Mass. 707, 92 N.E.2d 254 (1950); Hawes Elec. Co. v. Angell, 332 Mass. 190, 191--192, 124 N.E.2d 257 (1955). The question whether the illegality was serious or more than an incidental part of the performance has been held in some cases to be an issue of law which should not be left to the jury. Woodbury v. Sparrell Print, 198 Mass. 1, 9, 84 N.E. 441 (1908); Hawes l, supra, 332 Mass. at 192, 124 N.E.2d 257; Buccella v. Schuster, 340 Mass. 323, 325, 164 N.E.2d 141 (1960).

Applying these principles to the instant case, the defendant argues that sexual intercourse was within the scope of the agreement and that the plaintiff therefore can recover nothing for her services; that additionally, or in the alternative, the plaintiff's performance in an illegal manner by indulging in sexual intercourse, entitles her to no compensation, since her illegal performance was serious and not merely incidental to the agreement; that the illegality of the agreement and the illegality of the performance thereof were established as matter of law by the plaintiff's admissions on the witness stand at the trial, which the defendant argues were binding on her since there was no other evidence more favorable to her as to these issues; and that a directed verdict for the defendant was therefore required.

The plaintiff argues that public policy does not forbid her recovery in this case. For this proposition, she cites Silver v. Graves, 210 Mass. 26, 30, 95 N.E. 948 (1911); Hiram Ricker & Sons v. Students Intl. Meditation Soc., 501 F.2d 550, 556 (1st Cir. 1974), and Buccella v. Schuster, 340 Mass. 323, 326, 164 N.E.2d 141 (1960). She particularly relies on Commonwealth v. Balthazar, --- Mass. ---, 318 N.E.2d 478 a (1974). The further issue arises, as emphasized by the defendant, whether the latter case is apposite as to public policy considerations where (as argued here) the sexual relationship is asserted to be a matter of contract. We need not reach this issue because of our conclusion as reasoned below that the question as to whether illegality was an inherent part of the agreement was a question of fact for the jury's determination.

The judge, in denying the defendant's motion for a directed verdict, submitted to the jury the issue of illegality, both as to the content of the agreement and the nature of the plaintiff's performance. There was no error. We accept, at least for analytical purposes, the rules of law relied on by the defendant. Nevertheless, applying those principles in this case, we do not reach the result urged by the defendant because the evidence was not uncontroverted as to these issues, and, as stated by the defendant, construction of the contract terms is for the court rather than the jury '(w) here there is no conflicting evidence as to . . . those terms' (emphasis supplied). Where the...

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