(DOWNLOAD) "Spencer v. Burakiewicz Et Al." by Supreme Judicial Court of Massachusetts " Book PDF Kindle ePub Free
eBook details
- Title: Spencer v. Burakiewicz Et Al.
- Author : Supreme Judicial Court of Massachusetts
- Release Date : January 25, 1934
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
DONAHUE, Justice. The defendants on the morning of December 13, 1931, by the hands of a third party delivered to the plaintiff at his home in Sutton, Massachusetts, a check dated December 10, 1931, drawn by the defendants on the Bancroft Trust Company at Worcester and payable to the order of the plaintiff. The check was given in payment for milk which had earlier been sold by the plaintiff to the defendants. On the day after the delivery of the check, that is on December 14, the plaintiff at noon took the check to the Millbury Savings Bank, indorsed it and received therefor cash in the amount of the check. On the morning of the following day, December 15, the Bancroft Trust Company closed its doors and the check was not presented there for payment. Between the dates of December 10 and December 15 the defendants had on deposit with the trust company funds sufficient to meet the check. At some time after December 15 the plaintiff secured possession of the check from the Millbury Savings Bank under some arrangement which does not appear on the record. A Judge of a district court found for the plaintiff and reported the 'finding of the court for the plaintiff on the law and facts as found by the court' to the Appellate Division where an order was entered dismissing the report. The check upon which suit has been brought was delivered to the plaintiff on a Sunday and the defendants have argued before us that the plaintiff should not have been permitted to recover because of the fact of the violation of the statute which prohibits the transaction of business on the Lord's Day. G. L. (Ter. Ed.) c. 136. The defence of illegality was not pleaded by the defendants and is therefore not now open to them as of right. Raymond v. Phipps, 215 Mass. 559, 102 N.E. 905. Furthermore, it would appear that the question was not presented by the defendants at the trial in the District Court. At any rate there was no general request by the defendants for a ruling that the plaintiff was not entitled to recover and none of the requests for rulings there made by them has any reference to illegality of the contract which is expressed by the check. For that reason, as well, the defendants are not entitled to have that question considered on review. Reid v. Doherty, 273 Mass. 388, 173 N.E. 516; Caruso v. Shelit, 282 Mass. 196, 184 N.E. 460; Segal v. Allied Mutuals Liability Ins. Co. (Mass.) 188 N.E. 504. If the matter were properly before us on the report, the failure of the trial Judge of his own accord to inject the defence of illegality could not have been held to be reversible error. Cardoze v. Swift, 113 Mass. 250; O'Brien v. Shea, 208 Mass. 528, 535, 95 N.E. 99, Ann. Cas. 1912A, 1030; Whittingslow v. Thomas, 237 Mass. 103, 129 N.E. 386.