Shepley v. Henry Siegel Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LORING, J.
• Citation: Shepley v. Henry Siegel Co., 203 Mass. 43, 88 N.E. 1095 (Mass. 1909)
• Decision Date: 24 June 1909
• Parties: SHEPLEY v. HENRY SIEGEL CO.

203 Mass. 43

88 N.E. 1095

SHEPLEY v. HENRY SIEGEL CO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 24, 1909

COUNSEL

Emmons & Emmons, for plaintiff.

Brandeis Dunbar & Nutter (J. Butler Bradley and Austin T. Wright, of counsel), for defendant.

OPINION

LORING J.

This is an action brought to recover compensation for the plaintiff's services in buying for the defendant and at its request 31 horses in Motreal, Canada, and 45 horses in Boston.

The plaintiff testified: That when he was driving with Jenckes the defendant's agent, on a Sunday in the early part of June, 1905, Jenckes suggested to him that the should buy 100 horses in Canada for the defendant. That he 'told Jenckes he could go, but asked who was to pay him, and Jenckes replied, 'the defendant." Later, 'on a Tuesday,' Jenckes asked the plaintiff to go 'about July 5th.' The plaintiff went at once to Montreal and stayed there from a Tuesday night until the morning of the second Sunday following, devoting himself meanwhile to buying horses for the defendant. That he bought 31 horses in Montreal. That Jenckes arrived four days after he did and went around with him somewhat. That Jenckes and the plaintiff agreed that it was no use buying the rest of the horses in Canada and that Jenckes told him to buy the rest in Boston. That in pursuance of that request he bought 45 horses for the defendant at Harris' stable in Boston.

Jenckes testified that he never asked the plaintiff to go to Canada that the plaintiff went there on his own account and that he happened to be in Montreal at the same time and went around with the plaintiff; that he never asked the plaintiff to buy horses for the defendant in Boston, but the plaintiff asked him (Jenckes) as a favor to him (the plaintiff) to buy at Harris' stable the horses he was buying for the defendant.

After the plaintiff's evidence was in, the defendant was allowed to amend its answer by adding that if a contract was made it was made on Sunday and was void.

The defendant asked for the following rulings:

'(1) On all the evidence the plaintiff is not entitled to recover.'

'(15) If the contract made by the defendant with the plaintiff was made on Sunday, the plaintiff cannot recover for any breach thereof.

'(16) If an agreement was made between the plaintiff and Jenckes, representing the defendant, and assented to by both parties on Sunday, and the services, if any, later rendered by the plaintiff were all rendered under and in pursuance of this agreement made and assented to by both parties on Sunday, and there was no later agreement made or assented to by either party, the plaintiff cannot recover.'

Requests 15 and 16 were correct as abstract propositions of law. But there was no evidence which called for their being given. Indeed it may be doubted whether it would have been proper to give them on the evidence in the case at bar. All that the plaintiff testified to as having happened on Sunday was that he told the defendant's agent that he could go to Canada and the plaintiff asked the defendant's agent who was to pay him. He did not testify that in this Sunday conversation he agreed to go to Canada. He testified that on a subsequent weekday the...