322 Mass. 419 | Mass. | 1948
The plaintiff seeks to recover for services rendered to the defendant as manager of a fur department maintained by the defendant in a department store in Boston. After a verdict for the plaintiff for $10,100, the defendant excepts to the denial of its motions for a directed verdict in its favor, to the exclusion of certain evidence, and to the denial of its motion for a new trial. .
The defendant first employed the plaintiff for the year beginning on or about April 1, 1943. New contracts of employment were entered into for each of the two succeeding years. This action is to recover a balance alleged to be due for the third year, ending on or about April-1, 1946.
On the testimony of the plaintiff, the jury could find that for the first year (except a period at the beginning) the plaintiff was to receive a salary of $150 a week plus a bonus of $5,000 at the end of the year, against which he could draw at any time during the year; that for the second year his compensation was to be the same; but that for the third year he was to receive $200 a week, the same bonus of
The ground on which the defendant contends that a verdict should have been directed in its favor is that the increase in the plaintiff’s salary (including as salary the $10,000 or share of the profits) agreed upon in the spring of 1945 had not been approved by competent Federal authority under the wage stabilization act of October 2, 1942, 56 U. S. Sts. at Large, 765, §§ 1, 2, 5(a), 10, and 11, and regulations made in pursuance of that act.
In general, illegality in a contract is a defence only because it is against public policy that the court should be called
The language of the wage stablization act lends itself readily to this interpretation. The prohibitions of the act were specifically directed against paying or receiving wages or salaries and not against the making of executory agreements. § 5. See also § 4. The penalties of § 11 related to these prohibitions. Executive Order No. 9250, October 3, 1942, 7 Fed. Reg. 7871, dated the day after the enactment of the statute and designed to give effect to it, followed similar lines. This order provided in Title II, § 1, “No increases in wage rates . . . and no decreases in wage rates, shall be authorized unless notice of such increases or decreases” shall have been filed with and approved by the war labor board. Section 5 of the same title, 7 Fed. Reg. 7873, provided, “No increases in salaries now in excess of $5,000 per year . . . shall be granted until . . ..” Section 3 of Title III, 7 Fed. Reg. 7873, read in part, “No provision with respect to wages . . . which is inconsistent with the policy herein enunciated . . . shall be enforced,
No doubt an agreement to perform an illegal act is commonly an illegal agreement, but the difficulty in applying that doctrine here is that we do not think that any agreement to perform an illegal act is shown as matter of law. The burden of proof was upon the defendant. Savoy Finance Co. v. De Biase, 281 Mass. 425, 433. Chamberlain v. Employers’ Liability Assurance Corp. Ltd. 289 Mass. 412, 419. There was evidence that both parties knew of the wage stabilization act. There was evidence that the increase in the plaintiff’s weekly salary for the third year from $150 to $200 a week was not to begin until approval had been obtained. There was nothing that compelled the jury to find that the parties intended that the increased bonus should be paid at the end of the year regardless of approval. Such intent to violate the law is not to be presumed. The bonus payment for the third year was not to be made until on or about April 1, 1946. At any time before that date approval might be obtained, and then both the making of the contract and the performance of it would be entirely free of any taint of illegality. Many contracts cannot lawfully be performed without securing a permit, license, or approval from some governmental officer or board, and yet the contracts are not deemed illegal. Professor Williston says, "The fact that a party bargains to do an act which will be illegal unless governmental permission is obtained does not make such bargain illegal, and if he does not obtain such permission he is responsible in damages for failure to perform.” Williston on Contracts (Rev. ed.) § 1767, note 3.
From what has been said it follows, in our view, that the jury could find that at no material time was either the making of the contract for the third year or the performance of it unlawful, and therefore the defendant’s motion for a directed verdict could not properly have been granted.
There was no error in the exclusion of copies of two letters from the defendant to the plaintiff offered by the defendant. It did not appear that notice to produce the originals had been given to the plaintiff. The rule of Clark v. Fletcher, 1 Allen, 53, 57, does not apply. Although counsel for the plaintiff took in his hands at the trial a copy of one of the letters and read, apparently to himself, a copy.of the other, neither copy had been first produced at the trial in response to any actual demand by him. Both had been first produced by the defendant for its own purposes to refresh the recollection of the witness or to prove on redirect examination the existence of letters upon the existence of which the previous cross-examination had tended to throw doubt. Capodilupo v. F. W. Stock & Sons, 237 Mass. 550, 551-552. Leonard v. Taylor, 315 Mass. 580, 582.
There was no error of law in the denial of the defendant’s
We have dealt with all points saved.
Exceptions overruled.
See extending acts of June 30, 1944, 58 U. S. Sts. at Large, 632, § 101; 643, § 203; and of June 30, 1945, 59 U. S. Sts. at Large, 306, § 2.
Italics ours.
Italics ours.