Barry v. Washburn-Garfield Co.

The plaintiff appeals from an order for judgment for the defendant on a case stated. The plaintiff sought recovery in a three count declaration for damages based on the hiring by the defendant of one O’Hearn, formerly employed by the plaintiff. The case stated discloses no support for any count. Relative to the first two counts, the plaintiff concedes that no express contract existed. Nor was there created a contract implied in fact. The defendant did not request the plaintiff to find an employee and the plaintiff performed no services for the defendant in this regard. The defendant was as free to hire the plaintiff’s employee as he was to hire anyone else’s. Compare Spencer v. Spencer, 181 Mass. 471; Evers v. Gilfoil, 247 Mass. 219; Sykes v. Smith, 333 Mass, 560, 564-565. As to the third count, which is based on malice, there is nothing in the case stated to support a finding of malice, nor does the count speak to the question of damages. Order for judgment affirmed.