5 Mass. App. Ct. 790

March 7, 1977

The defendant Plante appeals from a judgment of the Superior Court awarding damages to the plaintiff Lougganes for Plante's breach of an option given to Lougganes to purchase land belonging to Plante. The case is before us with a transcript of the evidence and the findings of the judge, which are not clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Taylor v. Lassell, 4 Mass. App. Ct. 539 , 540 (1976). There was evidence from which the judge could properly have concluded that Lougganes did not violate any obligation or understanding with his corporate employer in taking the option in his own name and paying for it with his own funds. The defendant was obliged under Mass.R.Civ.P. 8(c), 365 Mass. 750 (1974), to raise illegality as an affirmative defense. He may not raise that issue for the first time on appeal. See Charm Tred Mills v. Erle P. Halliburton, Inc. 202 F. 2d 294, 297 (7th Cir. 1953);

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Radio Corp. of America v. Radio Station KYFM, Inc. 424 F. 2d 14, 17 (10th Cir. 1970); John R. Lewis Inc. v. Newman, 446 F. 2d 800, 805 (5th Cir. 1971); Stanish v. Polish Roman Catholic Union of America, 484 F. 2d 713, 721 (7th Cir. 1973). See also Wright & Miller, Federal Practice and Procedure, Section 1278 (1969). Moreover, we find no support in the evidence for the defendant's contention that enforcement would shock the conscience or contravene a fundamental principle of public policy. See Barsky v. Hansen, 311 Mass. 14 , 17 (1942); Adamsky v. Mendes, 326 Mass. 603 , 606-607 (1950); Cadillac Automobile Co. of Boston v. Engeian, 339 Mass. 26 , 29-30 (1959). Contrast Whitney v. Whitney, 317 Mass. 253 , 259 (1944).

Judgment affirmed.