De Montague v. Bacharach

• Decision Date: 03 January 1905
• Parties: DE MONTAGUE v. BACHARACH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 128

72 N.E. 938

DE MONTAGUE

v.BACHARACH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 3, 1905.

Exceptions from Superior Court, Suffolk County; John H. Heken, Judge.

Action by Albert F. De Montague against Solomon Bacharach and others. Judgment for defendants, and plaintiff brings exceptions. Exceptions sustained.

Jas. J. McCarthy, for plaintiff.

Henry H. Baker and H. M. Williams, for defendants.

BRALEY, J.

At the time of the verbal contract between the parties the defendants were in occupation of a furnished restaurant and liquor saloon in which they were doing business as common victualers. It was then mutually agreed that the plaintiff, during the remaining two years of the written lease under which they held the premises, should have the privilege of conducting the restaurant expressly for his own profit, while they retained control of the portion used for the sale of liquors. They also were to pay him one-tenth of all receipts for liquor sold and served at his tables until he began his payments to them, when this amount was to be increased to one-fifth. The plaintiff engaged to furnish all materials and labor required in his business, and also to pay one-half the salary of a porter in their employment, and all bills for gas used on the leased premises. But he was not to pay rent or other compensation until his undertaking had become sufficiently profitable to permit it, when the defendants were to receive one-tenth of his gross receipts. The exceptions recite that ‘about the last of June, 1899, * * * and after the plaintiff had run the restaurant about ten months, * * * he was compelled to stop by the defendants; that the agreement made between him and the defendants was broken and repudiated by the defendants without fault on his part, and that full performance of the contract was prevented by the defendants,’ and ‘no payments of any kind have ever been made by the defendants to the plaintiff, and nothing of value other than the use and enjoyment of the premises and utensils have ever been received by the plaintiff from the defendants.’ It further appears that during this time he made the payments called for by the contract. In the litigation that followed to recover the money paid it was held that the plaintiff could not prevail, for the reason that he could not rescind the contract, as it was impossible for him to return the benefit received. Nor could the action be maintained to recover what he had paid; for, if the contract was oral, and within the statute of frauds, and it had been broken by the defendants, yet the statute had not been pleaded, and, until this defense had been interposed, the contract could be enforced, and an action would not lie to recover the consideration. De Montague v. Bacharach et al., 181 Mass. 256, 258, 63 N. E. 435. Following this decision, the plaintiff then brought a second action to recover damages for breach of the contract, to which the defendants, by demurrer, set up the defense that it was within the prohibition of the statute of frauds. But no further steps were taken, and the plaintiff then proceeded to try again the first suit, which is the case now before us.

The pleadings, so far as they are material, consist of a count on an account annexed of 47 items, to which the answer is a general denial, and it is admitted by the plaintiff that of these all but 11 are for payments made by him under the contract. In the bill of exceptions no reasons are stated on which the ruling that the plaintiff could not recover was given. The inference, however, is that the evidence offered was excluded, and a verdict finally ordered on the plaintiff's evidence, because it was open to the defendants under their answer to assert that he had failed to prove that any of these items constituted a cause of action, as they were covered by an express contract. Rodman v. Guilford, 112 Mass. 405; Macdonald v. Sargent, 171 Mass. 492, 51 N. E. 17. Up to this point of the trial, whenever reached, there was no occasion for the plaintiff to prove that the defendants had resorted to the statute; but when it appeared that this part of the declaration was covered by the contract then he was obliged either to amend by declaring on the contract itself, if it was still in force, or submit to a verdict to this extent in their favor. Instead of amending, he sought to prove that they had avoided the contract by setting up this defense in the suit on the agreement. Mullaly v. Austin, 97 Mass. 30, 33; De Montague v. Bacharach, ubi supra. For this purpose the plaintiff offered in evidence the writ and pleadings in that case, which were excluded on the objection of the defendants, who now insist that it was not open to the plaintiff to show a resort by them to the statute, unless pleaded in the suit on trial. They further claim that this evidence was incompetent as proof that they had availed themselves of such a defense in the second suit.

It has been held that the statute cannot be relied on unless pleaded (Middlesex Company v. Osgood, 4 Gray, 447;Graffam v. Pierce, 143 Mass. 386, 9 N. E. 819;Brown v. Magorty, 156 Mass. 209, 30 N. E. 1021), and the better practice is undoubtedly to declare at the same time not only on the contract, but also upon the appropriate common count, if this defense is anticipated. Yet a general denial, where the latter alone is used, placed the burden of proof on the plaintiff, who could, under an account annexed, introduce the contract that had been repudiated to prove payments made by him under its terms; and, although it was not in issue on the face of the pleadings, he could not prove his case without its appearing in evidence. Basford v. Pearson, 9 Allen, 387, 391, 85 Am. Dec. 764; Mullaly v. Austin, ubi supra; Fitzgerald v. Allen, 128 Mass. 232, 234. After the former decision the declaration might have been amended by adding a count covering the issue raised by the second suit, but the plaintiff, at least in the absence of a plea in abatement, could pursue the defendants by separate suits founded upon different legal conceptions of his cause of action. If the first suit had been for damages for breach of the contract, instead of for money paid, and upon the statute being interposed judgment had been entered for the defendants, and a second suit had then followed to recover the consideration, the last action would not have been defeated because it did not appear by the pleadings therein that the defendants relied upon such a defense. In this case the order of trials was reversed, and the plaintiff cannot recover without proving that the defendants repudiated the contract by a reliance on the statute. But they could not prevent his recovery by simply omitting to set up the statute in their answer, as pleading such a defense here would be clearly inappropriate and mere surplusage. After the former decision, which gave them the power of choice either to abide by the contract or to avoid it, an election to avoid, regularly and properly pleaded by way of demurrer in the second suit, in which this issue alone arose, was sufficient. When a suit at law is brought and prosecuted in the usual manner, the appearance of counsel for the defendant and the preparation and filing of proper pleadings are presumed to be regular, and strictly within the scope of the attorney's employment.Such acts, so far as they definitely fix the legal grounds of his client's defense, must be held to bind his principal, at least until it is shown that he acted without authority. Loomis v. New York, New Haven & Hartford Railroad Co., 159 Mass. 35, 44, 34 N. E. 82;Currier v. Silloway, 1 Allen, 19;Gordon v. Parmelee, 2 Allen, 212;Jones v. Howard, 3 Allen, 223, 224. Until formally extended, the papers offered in evidence were the only record of the case, and showed that the defendants had pleaded the statute. Nor does it appear that after this had been done there was any denial of the apparent authority of their counsel, or refusal by them to be bound by the action taken. Bogle v. Chase, 117 Mass. 273, 275. The cases of Dennie v. Williams, 135 Mass. 28, and Farr v. Rouillard, 172 Mass. 303, 52 N. E. 443, on which the defendants rely as authorities for the exclusion of the evidence, were suits against a constable and the sureties on his bond to enforce the payment...