Stowe v. Buttrick

• Decision Date: 21 October 1878
• Citation: 125 Mass. 449
• Parties: M. M. Stowe v. Francis Buttrick
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 449

M. M. Stowe v. Francis Buttrick

Supreme Court of Massachusetts

October 21, 1878

Worcester. Contract upon an account annexed for services rendered as keeper of certain property attached by the defendant, a deputy sheriff. Answer: 1. A general denial; 2. That the contract was illegal and void.

At the trial in the Superior Court, before Bacon, J., without a jury, the plaintiff put in evidence a written appointment of himself as keeper of personal property of one Winchester which had been attached by the defendant on a writ against Winchester. He testified that there was no agreed price for the services to be rendered; that he kept possession of the property, and devoted his whole time thereto for two hundred and three days; that he was then directed by the defendant to deliver the keys and possession to Winchester, as the case in which the attachment was made was settled; and that his services were worth two dollars per day. No question was made as to the sufficiency of the writ against Winchester, or that he was owner of the property, or that the defendant attached the same and put the plaintiff in possession.

This was all the evidence; and the defendant contended that, on these facts, the plaintiff could not recover, on the ground that the contract proved was illegal and void.

The judge so ruled; and also ruled that upon these facts the plaintiff could not recover upon a quantum meruit; and found for the defendant. The plaintiff alleged exceptions.

Exceptions sustained.

W. S B. Hopkins & G. H. Whitney, for the plaintiff, were stopped by the court.

G. A Torrey, for the defendant.

Lord J. Ames & Soule, JJ., absent.

OPINION

Lord, J.

The ruling of the presiding judge, that the contract which the plaintiff seeks to enforce is void because of illegality cannot be sustained. Cutter v. Howe, 122 Mass. 541, upon which the ruling is supposed to be based, admits of no such interpretation. That case decides only that a fee charged by an officer, which the law does not authorize, cannot be taxed as legal costs in the suit. If, for the purpose of keeping goods of very trifling bulk, an officer should hire an entire building which was wholly unnecessary, the rent of such building would not properly be taxable costs in the suit; but it has not been decided that a lease thus taken by an officer would be void, or that the lessor could not recover rent upon it. If the officer should...