McCrea v. Marsh

78 Mass. 211

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1858
• Status: Published

Opinion

Metcalf, J.

It was correctly ruled, at the trial, that, the plaintiff could not maintain this action, and that his remedy, if any, was by an action of contract. We therefore need not express an opinion concerning any of the other rulings.

Assuming that the plaintiff, by purchase of the ticket from the defendant, obtained permission to enter the family circle in the Howard Athenseum, in his own person, and occupy a place there during the exhibition, yet it was “ only an executory contract.” It was a license legally revocable, and was revoked before it was in any part executed. After it was revoked, the plaintiff’s attempts to enter were unwarranted, and the defendant rightfully used the force necessary to prevent his entry.

According to the decision in Wood v. Leadbitter, 13 M. & W. 838, even if the plaintiff had been permitted to enter the family circle, the defendant might have ordered him to leave it, at any time during the exhibition, and, upon his refusal, might have removed him, using no unnecessary force. The doctrine of revocable licenses was there thoroughly discussed, and the authorities analyzed, by Mr. Baron Alderson, and the case of Tayler v. Waters, 7 Taunt. 374, and 2 Marsh. 551, was overruled. See also Adams v. Andrews, 15 Ad. & El. N. R. 296; Roffey v. Henderson, 17 Ad. & El. N. R. 574; Bridges v. Purcell, 1 Dev. & Bat. 492; Foot v. New Haven & Northampton Co. 23 Conn. 214; Jamieson v. Millemann, 3 Duer, 255.

The plaintiff is doubtless entitled to recover, in an action of contract, the money paid by him for the ticket, and all legal damages which he sustained by the breach of the contract implied by the sale and delivery of the ticket.

Exceptions overruled.