Rogers v. Abbott

• Decision Date: 03 March 1924
• Citation: 248 Mass. 220,142 N.E. 923
• Parties: ROGERS v. ABBOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 220

142 N.E. 923

ROGERS

v.ABBOTT.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1924.

Exceptions from Superior Court, Middlesex County; Jos. Walsh, Judge.

Action of contract under a common count on an account annexed by George I. Rogers against William C. Abbott, for plumbers' labor and material. Finding for plaintiff, and defendant brings exceptions. Exceptions overruled.

As found by the auditor, defendant contracted with one MacFadyen to do plumbing work. MacFadyen had no license as master plumber, and told defendant, it would be necessary to have some one associated with him, and that he would take in Rogers, the plaintiff, and divide the profit with Rogers. He did take in Rogers with the knowledge and tacit consent of defendant, and the work proceeded under the general direction and superintendence of Rogers to defendant's knowledge. Rogers did not hold a master plumber's license, and secured the permit to do the work in the name of one Luny, who had no connection with the job except to allow the use of his name in securing the building permit. Defendant requested the following rulings:

‘I. That on the whole evidence, as a matter of law, the plaintiff cannot recover.

‘II. That the act of plaintiff in procuring a permit, through the use of Luny's name to do the work, was fraudulent.

‘III. If fraud is shown as part of his undertakings, plaintiff cannot recover as he cannot take advantage of his own fraud.

‘IV. The permit to Luny (Luny having no interest or connection with the job) could not have been legally used by plaintiff so as to afford his doing the work or carrying out his alleged undertaking and afford him the right to recover.

‘V. Revised Laws, c. 103, and particularly section 1, is a prohibition statute. Plaintiff, before he can be permitted to recover must have shown that he did not do any illegal act in procuring the permit in Luny's name or in the name of any other disinterested party, or that he did no illegal act in laboring on the job without a permit running to him authorizing him personally to do the work.

‘VI. The permit being issued in the name of Luny, presumably a licensed master plumber, could not, on the evidence, have been used by the plaintiff, and thus afford him any right or rights under that permit.

‘VII. That a permit is merely a license to the party receiving the permit to do a certain thing. The permit in question did not run to the plaintiff or authorize the plaintiff in any way to do the work or furnish the materials.

‘VIII. That the statute in force in 1918 is mandatory; the violation of it is prohibited. The plaintiff in carrying out his alleged contract with the defendant, without having a permit authorizing him personally to do the work, violated that statute and therefore cannot recover.’Forest F. Collier, of Boston, for plaintiff.

R. W. Light, of Boston, for defendant.

PIERCE, J.

The evidence in this case, offered by the auditor's report and by the testimony of the defendant, on the merits warranted the finding of the judge that there was no fraud of which the plaintiff could complain and that the plaintiff was entitled to judgment in the amount found by the auditor with interest from the date of the writ. G. L. c. 221, § 56; Crocker...