82 Md. 518 | Md. | 1896
delivered the opinion of the Court.
This action was brought in the Circuit Court for Prince George’s County by the plaintiffs, now appellees, to recover from the defendants, now appellants, the amount of a promissory note for the sum of $12$, dated the 8th of May, 1894, which the appellees had, for value received, drawn payable four months after date to the order of P. O’Brien. Before the maturity of the note, the said O’Brien, for a valuable consideration, endorsed and delivered the same to the plaintiffs. The appellants pleaded in their defence, first, the non-existence of the alleged partnership; second, non assumpsit; fourth, that the alleged promissory note was procured by the fraud of the payee in said note; fifth, that the said note was procured by the fraud of the said payee, who was agent of the appellants. After filing said four pleas, the appellants filed two additional pleas, setting up the defence that the note sued upon had been obtained by O’Brien, the payee in said note, in'the course of an illegal sale of goods, in that he was engaged in selling without having previously obtained a license fpr that purpose,
■ The 4th, 6th, 7th, 8th, 9th pleas were demurred to in the body of the record and ampng the docket entries is found this printed statement: “ 1895, Mch. 4th, pleas fd, 1895, Apl. 3, additional pleas fd., demurrer to 4 and 6 pleas, general issue to rest of pleas; joinder on demurrer and replication; demurrer sustained; judgment on demurrer submitted to the Court.”
The record in its present form is scarcely intelligible. It nowhere appears what disposition was made of the demurrer
But the Court in sustaining the demurrer to the fourth plea did not restrict the appellant’s right of inquiring into the manner in which the note had been obtained. This he clearly could have done under the issue joined under the general issue plea filed. We are not entirely satisfied from the record that any demurrer to the 8th and 9th pleas was filed, but as the question has been fully discussed at the hearing in this Court, and is of importance, we will dispose of it. The question in its present form has never before been considered or passed upon by this Court. The facts material to the question are, that O’Brien, the payee, in the note sued upon, was engaged in peddling goods in said county, without having previously obtained a license authorizing him to do so, and it is alleged, that without having a license, he sold certain goods to the appellants. It is claimed by the appellants that such a contract is illegal, and cannot be enforced. There can be no kind of doubt about the fact that there is great diversity of dicta and decisions on this subject. But there are some general principles which run through nearly
And again in seeking for the legislative intent in the passage of the law, “ it is material also to inquire whether the penalty is imposed once for all, on the offence of failing to comply with the requirements of the statute, or whether it is a recurring penalty, repeated as often as the offending party may have dealings. In the. latter case the statute is intended to prevent the dealing, to prohibit the contract, and the contract is therefore void; but in the former case such is not the intention, and the contract will be enforced.” Benjamin on Sales, sec. 825.
The provisions of the Code now under consideration, are found in Art. 56, sec. 27 — 30, under the title of “ Licenses,” sub-title “ Hawkers and Pedlars.” Section 27 reads as follows : “No hawker or pedlar shall buy for sale out of the State, or buy to trade, or offer to trade, barter or sell within the State any goods, wares or merchandise, until he shall have first taken out a license for that purpose.” The other sections of the law provides for the apprehension and conviction of anyone engaged in selling without a license, and the imposition of a fine on anyone violating the law. When the law declares the consequence of its violation, the contract can in no sense be regarded as illegal, unless the law itself either by its manifest intent or in express terms so declares it. The provisions of the Code referred to neither directly nor indirectly refer to any consequences, save the payment of a fine for a violation of the law, and the failure to pay
We have been led to a somewhat extended consideration of this subject in passing on the demurrer to the 8th and 9th pleas, and it results from what we have said that the Court below in sustaining the demurrer committed no error.
There are three exceptions in the record, the first and second of which relate to the testimony sought to be offered, and the third to the refusal of the Court to grant the appellants’ instruction. In the first .exception, we think the Court was clearly in error in refusing to allow the witness, one of the appellants, to answer this question: “ State the circumstances under which you and your wife signed the promissory note offered in evidence.” Counsel for defendants following up the question, with a statement to the Court that he proposed to prove the fraud by which O’Brien had obtained the note. The question being objected to, the Court refused to allow the witness to answer it. Under the pleadings in the cause, the appellants had the undoubted
We think it very clear that the legal effect and meaning of the statute is that the next succeeding pleading must in terms deny the signatures of the maker, and of the payee as well, and we do not think the general issue plea is such a denial as the law contemplates. Before the passage of the Act of 1888, ch. 248, under issue joined on the general issue plea, the plaintiff had the burden cast upon him to establish the due execution of the note sued upon. Such being the case, what possible purpose could the Legislature have had in the passage of the Act in question, if not to relieve the plaintiff from the burden of proving the partner
In conclusion, it only remains for us to say that the Court below rightly refused to grant the appellant’s instruction.
It follows from the views herein expressed that the judgment below must be reversed.
Judgment reversed with costs, and new trial awarded.
The appeal in Parker and wife v. McCosker & Molloy, was also from a judgment of the Circuit Court for Prince George’s County, and was argued by F. Snowden Hill for the appellants, and was submitted on brief by R. Ford Combs for the appellees, in this case.
delivered the opinion of the Court.
The facts of the preceding case are similar in all material respects to this case, save only that O’Brien had in this case, at the time of the sale of the goods to the appellants, a pedlar’s license as required by law. In all other respects the cases are substantially the same. With the exception named, the views expressed in the preceding case are equally applicable here. For the reasons assigned in the previous case the judgment herein will be reversed.
Judgment reversed with costs, and new trial awarded.
(Decided March 24th, 1896.)