Carleton v. Woods

28 N.H. 290 | Superior Court of New Hampshire | 1854

Woods, J.

The counts upon the notes are not maintained. The consideration of the several notes was in part illegal. Where the contract is entire, the consideration for the promise, in part illegal, will not sustain it. Carleton v. Whitcher, 5 N. H. Rep. 196; Crawford v. Morrill, 8 Johns. 195; Chitty on Con. 61.

But the case in relation to the counts for goods sold and delivered, stands differently. The various articles sold may well be regarded as sold separately, each article.constituting the consideration for the promise to pay the price agreed for it. By the contract, each article was to be separately valued. Its value was to be determined by its original cost and freight, and that price was to be paid for it. The bargain was, in effect, a contract to pay for each article a price to be determined in the manner before stated. The consideration for the promise to pay for the goods is not to be regarded as one and indivisible. The sale and delivery of each article formed the consideration, in this case, for the promise to pay the price of it. The contract was divisible. The fact that the whole stock of goods was sold at the same time can make no difference. The terms of the agreement are to be looked at in determining its character. It was not the case of the sale of an entire stock of goods, for an entire price for the whole, without reference to the value of the separate articles sold. Instead of that, there was in fact a particular sum agreed to be paid for each article sold. This, we think, was the legal effect of the contract. And while the separate values of the articles sold can be ascertained, as fixed by the parties, the principle is not readily seen which would defeat the right of recovery for the stipulated price of that portion, the sale of which was legal. Under a count like the present, less may be recovered than is declared for. A recovery may be had for a part, although the claim made may be defeated in part. We are unable to see how this case differs from the case of a sale by a merchant of various goods to his customers, at one and the same time, for separate values, stated at the time, which, when computed, would of course amount to a certain sum in the aggregate. Where in such case the goods are charged to the customer, and the sale of a part of the goods should be found to be illegal, we think it would be difficult to maintain, upon any legal or equitable principles, that under a proper declaration the value of the goods which were proper and legal articles of sale could not be recovered. The contract for the goods sold in this case then, not being entire but divisible, and the prices of the several articles being agreed by the parties, and readily ascertainable, we are of the opinion that the plaintiff is well entitled to recover, under the count for goods sold and delivered, the agreed price of the goods sold, excepting the spirituous liquors, and that there must therefore be,

Judgment on the verdict.