96 Vt. 41 | Vt. | 1922
This is an action in contract in the common counts. The trial was commenced before a jury and proceeded until the plaintiff had rested his case, and the defendant had put in evidence in his defense, when the court, on its own motion, dismissed the action without costs to either party, on the ground that the contract sued upon was illegal.
The case shows that the defendant on March 14, 1919, ordered from the plaintiff, a concern doing business in Chicago, Illinois, a bill of goods, which he denominated as “Assortment No. 49,” consisting of five thousand collar buttons, cigar cutters, pocket knives, razors, a diamond ring, watches, pencils, fobs, meerschaum pipes, and a punch board. Upon receipt of the order, the plaintiff sent the same to the defendant under an agreement that the defendant was to sell the buttons upon a commission of 40% of the sum received, and as an inducement to the sale he was authorized to use the other articles delivered to him, with the buttons, in the following manner: The purchaser of each button was entitled to punch on the board sent with the other articles, and, if the purchaser was fortunate enough to get a certain number, he got one of those articles corresponding with the number punched on the board.
The defendant had the right at any time to return the buttons unsold, with the articles unused as inducements to the sale of the buttons, and the money received for the sale of the buttons, less the defendant’s commission.
Sometime in October, 1919, the defendant returned to the plaintiff four thousand five hundred of the collar buttons received on his order of March 14, 1919, and with the buttons the defendant returned to the plaintiff a part of the articles sent to him on that order. The defendant had sold five hundred of the buttons, and on the trial claimed that he returned to the plaintiff all of the articles received by him from the plaintiff, except what had been disposed of in the sale of the buttons, by way of prizes
Judgment reversed and cause remanded.