Adams v. Coulliard

102 Mass. 167 | Mass. | 1869

Colt, J.

The verdict of the jury, in this case, establishes the facts, that the liquors, the price of which the plaintiff seeks to recover, were sold to the defendant in New York; and that the plaintiff had reasonable cause to believe, but had no knowledge, that they were to be brought into this state for the purpose oi being sold here in violation of law.

The action was commenced May 25,1868. Under the Gen. Sts. c. 86, § 61, it could not have been maintained. The statute affects the remedy and was repealed by the St. of 1868, c. 141, before this suit was commenced. The cause of action still remained, and it arose out of a contract valid by the laws of the place where it was made. It is claimed, on the part of the defendant, that the contract originated in the purpose to violate a known law of this state'; and that our courts will not lend their aid, and afford a remedy thereon, even after the repeal of such law. To do this, it is said, would violate an elementary principle of the common law. The illegality of the contract must be determined by the law as it existed at the time the contract was entered into. If then illegal at the place where the contract is sought to be enforced, the rule applies.

It is not necessary, here, to consider whether the general rule has any modifications, when applied to contracts made out of the state, or to contracts made solely with reference to a violation of the revenue laws. In order to make the plaintiff, under any circumstances, a participant in such unlawful sale, at common law, it is necessary that he should at least have knowledge of the unlawful purpose. In some early cases, it was held that mere knowledge of the unlawful purpose of the buyer, on the pnrt of the seller, without further act, where the illegal use to be m ode of the goods was no inducement in the mind of the seller, ould not vitiate the sale, so as to deprive the seller of his. re medy. Clearly it is not enough, if he has only reasonable cause to believe that a violation of law is intended. The statute a one introduces this element, and upon its repeal the rule at common law only applies.

It was held in McIntyre v. Parks, 3 Met. 207, that a sale of lottery tickets, made in another state where such sale is lawful, to a citizen of this state, is a lawful transaction, although the seller knows that the purchaser buys for the purpose of illegal sale here. And the seller may maintain an action upon securities assigned to him in payment. In Webster v. Munger, 8 Gray, 587, the plaintiff sued to recover the price of intoxicating liquors. Both plaintiff and defendant were citizens of this Commonwealth, but the sale was made in another state, and the defence was, that they were sold in violation of the St. of 1852, c. 322. The validity of the sale was determined at common law; and the jury were instructed, in substance, that, if the sale was made on the part of the plaintiff “ with a view ” to a resale contrary to the laws of this Commonwealth, the action could not be maintained. This instruction was approved, and Thomas, J., who delivered the opinion, says of the rule in McIntyre v. Parks, that, if rightly laid down, it is not to be extended, but that the distinction is sound between a case where a seller simply has knowledge of the illegal design, — no more, — and where he makes a sale with a view to such design, and for the purpose of enabling the purchaser to effect it.

The later decisions in England establish the rule, that the sale of a thing, in itself a proper article of commerce, is void, when the vendor sells it knowing that it is intended to be used for an immoral or illegal purpose. Cannan v. Bryce, 3 B. & Ald. 179. Pearce v. Brooks, Law Rep. 1 Ex. 213. Benjamin on Sales, 383. See also Sortwell v. Hughes, 1 Curtis C. C. 214 Territt v. Bartlett, 21 Verm. 184; Dater v. Earl, 3 Gray, 482. But no case can be found where anything short of actual knowledge, on the part of the seller, of the illegal purpose, has been held to affect his rights under a contract of sale. 11 the case at bar, the jury have negatived such knowledge in the plaintiff.

For the purpose of establishing a delivery of the goods i i New York, the receipt of which the defendant denied, it was clearly competent for the plaintiff to trace them by evidene 2 from the freight boobs and the testimony of freight agents upo i the line of transportation. Inferences of fact are always to b 2 legitimately drawn from .the known course of business. An 1 although the plaintiff claimed that the delivery was in Netr York, and that it was immaterial to his right of action whethe " they were ever received, yet the fact that they passed in du -5 course on their way to the defendant had a tendency to confirm the alleged delivery. Briggs v. Rafferty, 14 Gray, 525.

The books were used as memoranda from which the witness Pratt testified ; and, although he had no present recollection of the transaction, he was rightly permitted to state that he had no doubt the entries in his handwriting were correct, and that the transaction took place as there entered. The entries were then properly read to the jury; and the defendant, not then asking to nave them put into the case, cannot now object that they did not go to the jury.

The rule which excludes the use, as evidence, of written instruments which contain material and unexplained alterations, does not apply to memoranda and entries of the description here read to the jury. Exceptions overruled.