WALTER W. GILBERT vs. MERRIMAC DEVELOPMENT CORPORATION.

WALTER W. GILBERT vs. MERRIMAC DEVELOPMENT CORPORATION.

333 Mass. 758

March 6, 1956 - March 28, 1956

Essex County

Present: QUA, C.J., RONAN, WILKINS, COUNIHAN, & WHITTEMORE, JJ.

A contract by a corporation to pay one not in its employ a commission if he should obtain a certain United States government contract for the corporation as the prime contractor was not invalid by reason of U. S. C. (1952 ed.) Title 41, Section 51, relating to "Fees or kick-backs by subcontractors." [759]

This court declined to take judicial notice of a Federal executive order not brought to the attention of the trial court. [759]

CONTRACT. Writ in the District Court of Lawrence dated June 10, 1954.

The action was heard by Daly, J.

Alfred L. Daniels, for the defendant.

Paul V. Salter, for the plaintiff.

WILKINS, J. This is an action of contract to recover "a commission" under an oral contract for obtaining orders for the defendant. One of the defences was that "the transaction from which the plaintiff's alleged claim arises was illegal." The trial judge found for the plaintiff. The Appellate Division dismissed a report, and the defendant appealed.

There was evidence warranting the findings here enumerated. The plaintiff, who was treasurer of Dartmouth Box Company and never in the employ of the defendant, requested the defendant to take an assignment of a government contract which had been obtained by the box company. The defendant declined this offer, but instead on August 12, 1953, made an oral contract to pay the plaintiff a commission of five per cent if he could obtain this contract for the defendant direct. As a result of the plaintiff's efforts,

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the defendant received a "negotiable Marine Corps contract."

The only question is the correctness of the denial of the defendant's fifth request for a ruling: "A finding by this Honorable Court that a valid oral contract was entered into by the plaintiff and the defendant [sic] the plaintiff would be barred from recovery because said contract based on a government contract would be illegal. 41 U. S. C. A. Section 51. Tocci v. Lembo, 325 Mass. 707 . Nussenbaum v. Chambers & Chambers Inc. 322 Mass. 419 , 421, 422."

The sole ground of illegality suggested in this incompletely worded request, or argued before the Appellate Division, was U. S. C. (1952 ed.) Title 41, Section 51, entitled, "Fees or kick-backs by subcontractors on cost-plus-a-fixed-fee or cost reimbursable contracts . . .." As was pointed out in the opinion of the Appellate Division, and as now seems to be conceded by the defendant, this statute relating to certain government contracts is inapplicable. There is nothing to show that "a negotiable Marine Corps contract" is a "cost-plus-a-fixed-fee or cost reimbursable" contract. By its terms the act prohibits payments by a subcontractor to "any officer, partner, employee, or agent of a prime contractor," to a prime contractor, or to "any officer, partner, employee, or agent of a higher tier subcontractor." The defendant was not a subcontractor, but a prime contractor. The plaintiff was neither a prime contractor, nor the officer, partner, employee, or agent of a prime contractor or higher tier subcontractor.

The defendant now brings forward in this court another ground of illegality. This is executive order No. 9001, effective December 27, 1941. 6 Fed. Reg. 6787. 8 Fed. Reg. 1429. U. S. C. (1952 ed.) Title 50, Appendix, Section 611. We need not take judicial notice of this regulation, which was not brought to the attention of either court below. Mastrullo v. Ryan, 328 Mass. 621 , 622. But we must take note of Federal statutes. G. L. (Ter. Ed.) c. 233, Section 70. Glover v. Mitchell, 319 Mass. 1 , 3. The defendant erroneously refers to U. S. C. (1952 ed.) Title 41, Section 254 (a), which was not

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enacted until June 30, 1949, as the authorization for the order. But this is of no present importance. No argument is made by the defendant based upon Section 254 (a) standing alone, and the record does not disclose facts bringing the present contract within the provisions of that section.

Order dismissing report affirmed.