Stewart v. Thayer
| Decision Date | 30 March 1898 |
| Citation | 49 N.E. 1020,170 Mass. 560 |
| Parties | STEWART v. THAYER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert
W. Nason, for plaintiff.
Geo A.O. Ernst, for defendants.
This is an action upon an account annexed, for music furnished to the defendant by the plaintiff. The case already has been before this court, after a trial on the first count. Stewart v. Thayer, 168 Mass. 519, 47 N.E. 420. It has been decided that the contract testified to by the plaintiff was entire, and is not to be enforced because a part of the services which it called for were to be rendered on Sunday, and were within the prohibitions of Pub.St. c. 98, § 2. We assume this to be settled, and shall discuss it no further.
When the case came on for trial a second time, the plaintiff was allowed to amend his declaration by adding a second count like the first on an account annexed, but intended seemingly, by some changes of dates, etc., to avoid showing that any of the services rendered were on Sunday, the contract under which they were rendered not being mentioned, of course. It was objected on behalf of the sureties on a bond given to dissolve the attachment in this suit that the amendment was not for the same cause of action, but the amendment was allowed, and the sureties excepted.
We assume that the sureties have a locus standi to except, even if their rights would be protected sufficiently by leaving it open to them to deny that the cause of action was the same when sued upon their bond. Pub.St. c. 167, § 85; Kellogg v. Kimball, 142 Mass. 124, 128, 129, 7 N.E. 728. But we think it needs no argument or express evidence to show that the new count is for the same cause of action as the old, within the requirements of Pub.St. c. 167, §§ 42, 85. Mann v. Brewer, 7 Allen, 202. They both claim the same sum for services during the same months of the same year, and for services shown to have to do with music,--in the first count, by the words "orchestra" and "music boxes"; in the second by the words "leader" and "music boxes." Even if the finding had not been warranted when the amendment was allowed, it was shown to be correct as soon as the plaintiff offered his evidence. This exception is overruled.
When it came to the evidence, the plaintiff proposed to prove that he rendered the services declared for on secular days, but admitted that on cross-examination his testimony would be the same as at the former trial, which means that it would show the services to have been rendered under a contract which, as we have said, already has been passed upon by this court. Thereupon the court ruled that the action could not be maintained, and the plaintiff excepted.
It was suggested that the defendant was not entitled to bring out what the real contract was, and that it would be taking advantage of his own unlawful act. But when the plaintiff tried to establish a certain contract, namely, a promise expressed by conduct to pay a fair and reasonable price for services rendered on week days, the defendant had a right to show that he did not make that contract, and he might prove it as well by showing that he made a different contract as by showing that he made a different contract as by showing that he made none. Phipps v. Mahon, 141 Mass. 471, 473, 5 N.E. 835; Starratt v. Mullen, 148 Mass. 570, 20 N.E. 178. For this negative purpose, it does not matter whether the contract actually made was valid or not. See Starratt v. Mullen, ubi supra; Railroad Co. v. Sanders, 134 Mass. 53, 55.
It will be noticed that this contract was bad, not because of the time when it was made, but because of its contents. Unless the original contract had been split up, of which there was no pretense, there could be no question of fact whether a valid contract was not made at a later time, such as sometimes has arisen under the Sunday law. Under such circumstances, however illegality should be dealt with, it should be dealt with on evidence of the facts as they were. It would be inelegant, if not worse, to allow the jury to find that the defendant made an actual contract, different from that which he really made, by confining him to evidence of only a part of the facts, and excluding the rest.
If the plaintiff were to be allowed to recover, the ground would be that, if the defendant saw fit to repudiate...
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