Eastern Expanded Metal Co. v. Webb Granite & Construction Co. , 195 Mass. 356 ( 1907 )

Knowlton, C. J.

These are cross actions growing out of the furnishing of labor and materials by the plaintiff in the first action, hereinafter called the plaintiff, for the defendant, in that action, which is hereinafter called the defendant, in the erection of the Hotel Somerset on Commonwealth Avenue in Boston. The first suit was brought upon an account annexed, and the second is for a breach of a contract in writing under which the work was done. This contract called for the construction by the plaintiff of the steel frame, the floors, the roof and some other parts of the building, “ in conformity with the requirements of the statute regulating the construction, maintenance and inspection of buildings in the city of Boston, and to the. satisfaction of the building commissioner of said city,” all as shown in the drawings prepared by the architect, etc. Section 64 of the St. 1892, c. 419, regulating the construction of buildings in the city of Boston, forbids under a penalty the erection of a building, of the class to which the Hotel Somerset belongs, with a roof haying a pitch of more than twenty degrees. The drawings of the architect made the roof of this building have a pitch of thirty degrees. The contract, by a general provision, required that the building should be erected in conformity with this statute, but in the particular provisions as to the roof it called for a building whose erection was forbidden by the statute. Out of this part of the contract relative to the roof the controversy between the parties has arisen.

The jury, in answer to a question, have found by their verdict that the plaintiff, when the contract was executed, did not know that the agreement called for a roof with a pitch of more than twenty degrees. The contract was executed on November 8, 1897, and on December 17, 1897, it was modified by a supplemental contract which does not affect the questions before us. On March 25,1898, the plaintiff’s attention having been called to the pitch of the roof, it wrote to the defendant in regard to it, and from that date until May 22,1898, there were negotiations by letters and interviews between the parties in reference to this matter, to see if some arrangement could be made that would be satisfactory to both. On this last date, the defendant having finally insisted that the room should be constructed with a pitch of thirty degrees according to the contract, and the plaintiff having declined to violate the law in this particular, the plaintiff discontinued work, and the defendant caused the construction to be completed by another party.

The presiding justice ruled that the contract was illegal, and that the defendant could not recover damages in the cross action for the breach of it, nor avail itself of this breach as a defence to the plaintiff’s claim in the original action. The exception of the defendant to this ruling presents the first question for our consideration.

While this statute was enacted in the interest of the public, with a prescribed penalty for the violation of its provisions, and while it gives jurisdiction in equity for its enforcement, we think that it plainly renders illegal the acts which it purports to prohibit, and that it forbids these acts, instead of prescribing regulations that are merely directory. In this respect the case is unlike Lamed v. Andrews, 106 Mass. 435, Learned v. Geer, 139 Mass. 36, and Bowditch v. New England Ins. Co. 141 Mass. 292; and is like William Wilcox Manuf. Co. v. Brazos, 74 Conn. 208, Spurgeon v. McElwain, 6 Ohio, 442, Shortall v. Fitzsimmons & Gonnell Co. 93 Ill. App. 231, Stevens v. Gourley, 7 C. B. (N. S.) 99, and Stewart v. Thayer, 168 Mass. 519. We are of opinion that the judge was right in ruling that the contract was not enforceable in favor of the defendant, either as a foundation for a cross action or as a defence to the original action.

The next question is whether the jury could be permitted to find for the plaintiff on the account annexed, upon its disaffirmance of the contract under which the labor and materials were furnished.

It has been held in many cases that, where the matters called for in the contract that render it illegal do not involve moral turpitude, but are merely mala prohibita, either party, while it remains executory, may disaffirm it on account of its illegality and recover back money or property that he has advanced under it. If the contract has been executed the court will not relieve either party from the consequences of his own violation of law. But so long as it is entirely unexecuted in that part which the law forbids, there is a locus penitentiae. The doctrine is stated very fully in White v. Franklin Bank, 22 Pick. 181. This rule is followed in Love v. Harvey, 114 Mass. 80, Atlas Bank v. Nahant Bank, 3 Met. 581, and Morgan v. Beaumont, 121 Mass. 7. It is established in a long line of English cases. Hastelow v. Jackson, 8 B. & C. 221. Bone v. Ekless, 5 H. & N. 925. Taylor v. Bowers, 1 Q. B. D. 291. Hampden v. Walsh, 1 Q. B. D. 189. Strachan v. Universal Stock Exchange Co. [1895] 2 Q. B. 329. Hermann v. Charlesworth, [1905] 2 K. B. 123,135. It is also adopted generally in America. Spring Co. v. Knowlton, 103 U. S. 49. Block v. Darling, 140 U. S. 234, 239. Pullman Car Co. v. Central Transportation Co. 171 U. S. 138. Kiewert v. Rindskopf, 46 Wis. 481. Urwan v. Northwestern Ins. Co. 125 Wis. 349. Skinner v. Henderson, 10 Mo. 205. Most of these cases relate to the recovery of money or property that has been advanced under the illegal contract which is subsequently repudiated. In the present case labor and materials for the improvement of real estate were furnished by the plaintiff. In this Commonwealth, when labor and materials are furnished and used upon real estate under a special contract, and for reasons which are not prejudicial to the plaintiff the contract becomes of no effect, it is held that the party furnishing them may recover upon a quantum meruit for their value as a benefit to the real estate. A familiar illustration of this rule is found in the cases where a contractor, acting in good faith in an effort to perform his contract, fails to complete it entirely, as in Hayward v. Leonard, 7 Pick. 181, and Blood v. Wilson, 141 Mass. 25. Another illustration is when it becomes impossible to perform the contract because the subject to which it relates is destroyed, by fire or otherwise, without the fault of either party. Butterfield v. Byron, 153 Mass. 517. Angus v. Scully, 176 Mass. 357. Young v. Chicopee, 186 Mass. 518. We are of opinion that, when labor and materials have been furnished upon real estate under a contract which contains an illegal element under a prohibitory statute, and when the contract remains entirely executory in that part which is illegal, and is disaffirmed because of its illegality, the disaffirming party has the same right to have compensation for the benefit conferred upon the real estate that he would have to recover for money or property received by the other party before the disaffirmance of such a contract. This is an application of the principle which governs the decisions in the cases cited above.

In the present case, under the instructions of the court, the jury must have found that the contract was disaffirmed by the plaintiff because of its illegality, and that, in reference to the objectionable part, it remained wholly executory. We are of opinion that the construction of the lower portions of the building, which were entirely in conformity with the statute, did not deprive the plaintiff of its right to repudiate the contract before doing anything which was illegal, especially as it has been found that the plaintiff was ignorant of the illegality when it executed the contract, and as it was easy to change the plan for the roof and make it conform to the statute when the plaintiff left the work. In many of the cases cited above some action had been taken by the plaintiff under the contract before the disaffirmance of it, as in the cases of recovery of money wagered and put in the hands of a stakeholder. The important point in most of the decisions is that the part of the contract directly in violation of law had not been executed. The bringing of suit for the recovery of money or property advanced necessarily implies that something has been done under the contract.

The fact that some work was done by an engineer of the plaintiff on the plans for the roof, which did not form a part of the construction of the building, and for which no claim was made in this suit, is immaterial. This was done in connection with negotiations for a new arrangement between the parties, •which occupied a considerable time. These plans were not turned over to the defendant.

The defendant's contention that the plaintiff cannot recover because of evidence that, under the arrangement of the supporting portions of the frame, a part needed reinforcement to sustain the weight of the building, is not well founded. This contention was not made at the trial, and if it is open to the defendant on the record, it does not call for extended discussion. In working under the plans both parties must have intended that, if reinforcement was anywhere needed to conform to the requirements of the law as to the strength of the building, it would be furnished. This evidence only affects the amount to be recovered, and due allowance has been made for the deficiency, both in the auditor’s report and in the verdict of the jut7-

In each case the entry is

Exceptions overruled.