Morello v. Levakis

• Decision Date: 26 February 1936
• Parties: MORELLO v. LEVAKIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 450

200 N.E. 271

MORELLO

v.LEVAKIS.

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 26, 1936.

Action of contract by Joseph Morello against George N. Levakis. From an order dismissing the report of the trial judge who found for plaintiff in the sum of $1,705.69, defendant appeals.

Affirmed.Appeal from Appellate Division of District Court, Western District; Collins, Judge.

E. S. Searle, of Springfield, for appellant.

C. V. Ryan, Jr., of Springfield, for appellee.

QUA, Justice.

The plaintiff, a building contractor, brings this action against the owner of a brick building located on Seventh Street, in Springfield, to recover a balance alleged to be due to the plaintiff on account of a written contract between the parties under which the plaintiff has added a second story to the defendant's building.

The trial judge has refused to find for the plaintiff on the written contract, presumably because of certain deficiencies in performance. Bowen v. Kimbell, 203 Mass. 364, 89 N.E. 542,133 Am.St.Rep. 302;Searls v. Loring, 275 Mass. 403, 176 N.E. 212. He has, however, after deducting $85 for the deficiencies, found for the plaintiff on quantum meruit counts in the sum of $1,349.19, hayward v. Leonard, 7 Pick. 181,19 Am.Dec. 268, and he has found for the plaintiff in the further sum of $356.50 on a count for extra work.

The defendant contends that the plaintiff should not recover for any work covered by the contract or for the greater part of the extra work, because certain of the specifications of the contract and certain parts of the building as actually constructed were inconsistent with the requirements of the building ordinances of the city of Springfield. It is argued that both the contract itself and the manner of performing it were illegal. Eastern Expanded Metal Co. v. Webb Granite & Construction Co., 195 Mass. 356, 81 N.E. 251,11 Ann.Cas. 631. The matters argued as violations of the ordinance relate to the thickness of certain walls and to the composition of the mortar used.

It may be doubted whether the specifications of the contract itself are really at variance with the ordinance, and it has been held that a variation of this kind appearing in the actual performance of the work and not required by any illegal term of the contract, does not necessarily bar recovery. Fox v. Rogers, 171 Mass. 546, 50 N.E. 1041. But we do not stop to discuss these matters, for we are of opinion that these contentions are not now open to the defendant. Illegality was not pleaded as a defence. In O'Brien v. Shea, 208 Mass. 528, at page 535, 95 N.E. 99, 101, Ann.Cas.1912A, 1030, it was said that in actions at law ‘like the one at bar * * * the court will recognize no absolute duty to interfere and of its own mere motion to sustain a defence not set up by the party, and generally will not so interfere, unless, first, the plaintiff's declaration shows that he relies upon an illegal agreement or violation of law, or, secondly, unless he has been obliged to show his own guilt in fully proving his case.’ And in Nowell v. Equitable Trust Co., 249 Mass. 585, at page 595, 144 N.E. 749, 752, this court said ‘Illegality of a contract, unless of such nature as to stock the conscience or to be inherently wrong, or unless patent upon the plaintiff's own case, usually must be pleaded.’ Williston on Contracts, § 1630a. The judge found that the building is safe, sound and substantial in all respects; that the plans for the building and the building itself were approved by the building department of the city; that the mortar is good, strong, suitable mortar; that ‘deviation by the plaintiff from the exact letter or requirements of the Building Code * * * was not patent in the presentationof the plaintiff's own case * * * and in fact, was not a matter of any practical importance’; and that ‘any such deviation was not such a violation as to be inherently wrong or to shock the conscience or to be so against public policy as to require the Court of its own motion to take cognizance of it.’ We cannot say that these findings are unjustified. The judge was not bound to believe witnesses called by the plaintiff, other than the plaintiff himself. Haun v. LeGrand, 268 Mass. 582, 168 N.E. 180;Salem Trust Co. v. Deery (Mass.) 194 N.E. 307; nor was he bound to find on the evidence that proof of the plaintiff's case necessarily involved proof of illegality. See Granger v. Ilsley, 2 Gray, 521;Suit v. Woodhall, 116 Mass. 547.

The evidence fails to disclose such inherently wrongful conduct as to require the court to intervene for the preservation of public policy or morality or the maintenance of its own dignity. If a party who has received the benefit of a well-constructed building erected substantially in accordance with his contract wishes to rely in defence upon variations from...