Huey v. Passarelli

• Decision Date: 06 June 1929
• Citation: 267 Mass. 578,166 N.E. 727
• Parties: HUEY v. PASSARELLI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 578

166 N.E. 727

HUEY

v.PASSARELLI et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 6, 1929.

Appeal from Municipal Court of Boston, Appellate Division; Abraham K. Cohen, Special Judge.

Action by William Q. Huey against Eugene Passarelli and another. Judgment was entered in municipal court for plaintiff, and the material evidence reported to the appellate division for determination. From a final decision of the appellate division ordering the report dismissed, defendants appeal. Affirmed.

Howard V. Knight, of Boston, for appellants.

Harland B. Newton and Harvey E. Weir, both of Boston, for appellee.

PIERCE, J.

This is an action of contract to recover under the common counts the sums of $29.15 for several items, and $575 for the painting of the defendant's house. The plaintiff admitted in his count upon the written contract a payment by the defendants of $250 on account of the contract. The judge of the municipal court found for the plaintiff in the sum of $354.15 and reported all the evidence material to the Appellate Division for determination. The Appellate Division ordered the ‘Report dismissed,’ and the case comes before us on the appeal of the defendants from the final decision of the Appellate Division.

The written contract declared on was signed ‘Boston Bronzing & Painting Company, by Wm. Q. Huey’ ‘Eugene Passarelli E. Passarelli, Owner.’ ‘At the close of the trial the plaintiff admitted and the Court found as a fact, that the plaintiff had not filed a business certificate as required by the provisions of Chapter 110 Section 5 of the General Laws,’ which reads: ‘Any person conducting business in the commonwealth under any title other than the real name of the person conducting such business, whether individually or as a partnership, shall file in the office of the clerk of every town where an office of any such person or partnership may be situated a certificate stating the full name and residence of each person conducting such business. The clerk shall keep a record of such certificates and an index of the names of such persons and partnerships, entering in such index in alphabetical order the name of every person and the title under which he conducts business, and of every partnership with the names of the members thereof. Violations of this section shall be punished by a fine of not more than one hundred dollars for each month during which such violation continues.’ The report discloses that the plaintiff's son had the same business address and telephone number as the plaintiff and conducted business under the name Boston Bronze & Paint Co. with the knowledge of the plaintiff; that the plaintiff's son negotiated the details regarding the painting of said house and introduced the defendant Eugene Passarelli to the plaintiff on the occasion when the contract was signed, at which time nothing was said as to who was the proprietor of the business. The report further discloses that there was evidence on behalf of the defendants, and denied by the plaintiff, of three further payments. The plaintiff testified that the son was not authorized to act as his agent to accept payments or otherwise and that at least on one occasion, namely, on May 16, 1928, he informed the defendants that payments were to be made to no one except himself. There was no evidence at the trial that the defendants had ever examined the records of the city clerk or caused them to be examined, nor that they knew prior to the trial that no business certificate had been filed by the plaintiff.

At the trial it was ‘agreed by the plaintiff and the defendants that if under the circumstances the failure to file a business certificate as required by G. L. c. 110, § 5 is sufficient as a matter of law to bar the plaintiff from recovery in this action, then judgment may be entered for the defendants, but if the said failure to file a business certificate is not sufficient under the circumstances as a matter of law to prevent recovery by the plaintiff in this action, then the finding of the Court may stand and judgment be entered for the plaintiff on the finding.’ It is assumed that the judge found the defense of further payments at least not proved, and that the only question for decision is whether, as matter of law, ‘under the circumstances' the plaintiff is barred from recovery by reason of his failure to file the certificate required by G. L. c. 110, § 5.

‘It is often a difficult question to determine whether a statute forbidding an act to be done, or enjoining the mode of doing it, is prohibitory, so as to make any contract in violation of it absolutely void, or whether it is directory in its purpose, and does not necessarily invalidate the contract.’ Bowditch v. New England Mutual Life Ins. Co., 141 Mass. 292, 293, 4 N. E. 798, 800 (55 Am. Rep. 474);Eastern Expanded Metal Co. v. Webb Granite & Construction Co., 195 Mass. 356, 361, 81 N. E. 251,11 Ann. Cas. 631. Concerning the rule to be applied in case of a statute prohibiting or enjoining things to be done with a prohibition and a penalty or a penalty only for doing a thing which it forbids, it is said in Harris v. Runnels, 12 How. 79, at page 84 (13 L. Ed. 901): ‘the statute must be examined as a whole, to find out whether or not the makers of it meant that a contract in contravention of it should be void, or that it was not to be so. In other words, whatever may be the structure of the statute in respect to prohibition and penalty, or penalty alone, that it is not to be taken for granted that the legislature meant that contracts in contravention of it were to be void, in the sense that they were not to be enforced in a court of justice. * * * It is true that a statute, containing a prohibition and a penalty, makes the act which it punishes unlawful, and the same may be implied from a penalty without a prohibition; but it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it.’ It is also true that ‘when the statute is silent, and contains nothing from...