125 Mass. 449 | Mass. | 1878
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 attempt to charge such rent as part of the cost of service, or if the lessor should undertake to hold the adverse party for such charge, there would be an analogy to the case of Cutter v. Howe. There is nothing in the case at bar to show that the plaintiff was at any time or in any respect a wrongdoer. His claim is that he performed a service at the request of the defendant, for which he is entitled to compensation. The service was not an illegal service, as between the plaintiff and the defendant; and if it should happen that, for the performance of such service, the defendant has no claim upon another, it is the misfortune of the defendant, and not the fault of the plaintiff. The right of the plaintiff to recover for services rendered at the defendant’s request does not depend upon the right of the defendant to recover from another for the services rendered. There is nothing in the case to show
