Goddard v. Morrissey

172 Mass. 594 | Mass. | 1899

Barker, J.

1. The defendant now contends that the contract called for services, part of which were to be rendered on thé Lord’s day, and could not be enforced, and that, although the illegality was not pleaded nor called to the attention of the court below, it is apparent and can be taken advantage of here. But the contract is susceptible of a construction which makes it legal, and we have no doubt that this construction was given to it by the court below. The contract was a hiring for the “ week of June 28,” that is to say, for the secular days of that week. It does not appear that the plaintiff and those whom he was to furnish to work with himself were required to perform on the Lord’s day. They were to be “ in the afterpiece if required ”; but the postscript, “ Train leaves at 1 P. M. Sunday,” implied that they were not to give a performance on the Lord’s day. The defendant contends that the contract implied that they were to go from Boston to Lowell by the Sunday train. But a journey on the Lord’s day was not an essential step to the performance of the contract. The plaintiff and his performers were no doubt to be at the Park in season to perform on Monday, but could go from Boston on a secular day. The postscript merely informed them of a train which they could take.

2. If the further stipulation, that the two people whom the plaintiff should furnish should be competent persons and satisfactory to the defendant, was made a part of the contract, it affords no ground of defence. The defendant did not base his refusal to perform the agreement upon the ground that either of the two persons was incompetent, or was not satisfactory to the defendant, but upon the ground that the defendant could not get the Park, and therefore did not need the services. If he had taken the ground that the persons engaged were incompetent or unsatisfactory, the plaintiff might have procured others. By refusing for other reasons to accept the services offered, the defendant lost the right to object that the persons engaged were not competent or satisfactory. See Gilbert & Barker Manuf. Co. v. Butler, 146 Mass. 82.

3. The defendant also contends that the damages should have been either the full amount which the plaintiff was to receive under the contract, or merely nominal. The full amount was sixty dollars, and the amount of the finding for the plaintiff was fifty dollars. The defendant was not harmed by a finding against himself of fifty dollars rather than of sixty. The evidence justitied a finding for more than nominal damages. The plaintiff was out of employment for the week, and he engaged as his own employees persons whose services he was bound to furnish.

Exceptions overruled.