60 Pa. Super. 552 | Pa. Super. Ct. | 1915
Opinion by
As a general proposition, knowledge by the vendor of goods sold in another state that the vendee intends to use them in violation of the laws of this State, is not sufficient to invalidate the contract, when sought to be enforced here, unless the vendor does something in aid of the illegal design of the vendee, and if he does, he cannot recover for the price of the goods sold. If it appear from the plaintiff’s evidence that the vendor aided in the prosecution of the illegal design, it is the duty of the court to withdraw from the jury any consideration of the contract and direct a compulsory non-suit.
Two grounds of illegality of contract are urged: that the vendor aided and participated in an unlawful act, and, that the place of sale to the defendant occurred in Allegheny County, the plaintiff having no license to sell liquors in this county.
As to the first proposition, the plaintiff denied all
On the question as to the place of sale, the learned court below seemed to be of the opinion that inasmuch as the defendant contested the claim on other grounds and particularly on the ground of agency, that the question of the legality of the sale should not be inquired into. In this the court was in error. As between vendor and vendee the contract in suit in all its essential elements must be clear of illegal acts when it grounds an action for the recovery of money for goods sold. If the contract is founded on an illegál transaction, and suit is brought for goods sold and delivered, it is immaterial what the defense to the contract may be. The fact that the defendant claims agency will not prevent the court from striking down such contract and declaring it void as against public policy. At the conclusion of the plaintiff’s case, with no testimony of agency present, with an illegal transaction as the basis of suit, it is the duty of the court to refuse to become a party to the furtherance of the illegal act. The plaintiff’s statement, after a careful analysis, contains no claim on account of agency; the books offered in evidence did not show an account between principal and agent, but that of ordinary debt- or and creditor, and the plaintiff denied entirely defendant’s agency. The case was not within the rule laid down in Hertzler v. Geigley, 196 Pa. 419. It was not necessary for the defendant to specially plead the illegality of the transaction. “Whenever it appears bn the trial of ah action of assumpsit (whether in the plaintiff’s case in chief, or upon cross-examination, or by way of defense, under the plea of non assumpsit) that the plaintiff’s claim rests upon an illegal foundation the
The fifth assignment of error is sustained, judgment is reversed and a venire facias de novo awarded.