113 N.W. 1067 | N.D. | 1907
Appellants', who are wholesale liquor dealers at St. Paul, Minn., brought this action against respondent and one Hillier to recover the purchase price of certain intoxicating liquors sold' and delivered by them to the defendants. Defendants answered’ separately; the defendant Hillier expressly admitting- liability, while defendant Toetcher denied any connection with the purchase of such liquors either as a partner with his codefendant, as alleged, or otherwise, and alleged upon information and belief that the sales of such liquors were made in this state in violation of- law, and hence that no action is maintainable for the purchase price thereof. Upon the trial of the action in the district court; a verdict was directed in respondent’s favor, and from a judgment entered pursuant thereto this appeal is prosecuted. A statement of the case was duly settled, embracing 23 specifications of error, 14 of which are assigned in appellant’s brief. The first 10 assignments relate to rulings of the trial court upon the admission of certain evidence tending to show prior sales of intoxicating liquor by these plaintiffs to defendant; appellant’s contention being that such evidence was inadmissible under the pleadings, the specific point being that there was no sufficient allegation in the answer that the sales were made with intent to enable the defendant to violate the laws of this state by making illegal sales of such liquors therein in contravention of the provisions of chapter 65, section 9353, of the Penal Code of 1905, relating to prohibition or the unlawful dealing in intoxicating liquors. The respondent’s answer contains an allegation as follows: “Defendant further alleges upon information and belief that the goods, wares and merchandise for the purchase price of which this action is brought consisted of intoxicating liquors, the sale of which is prohibited in the state of North Dakota, and that the sales thereof, set forth in the complaint, were made in the state of North Dakota, and that such sales are void under the provisions of section 762 of the Revised Codes of 1905 of this state, and that no action is maintainable thereon.”
Respondent, however, seeks to invoke the aid of section 9390, Rev. Codes 1905, being section 7621, Rev. Codes 1899, without the necessity of pleading facts bringing the case within its provisions. Among other things, this section provides that “all sales, transfers, conveyances, mortgages, liens,- attachments, pledges and securities of every kind, which, either in whole or in part, shall have been made for or on account of intoxicating liquors sold in violation of this chapter, shall be utterly null and void against all persons in all cases, and no rights of any kind shall be acquired thereby, and no action of any kind shall be maintained in any court of this state for intoxicating liquors, or the value thereof, sold in any other state or country contrary to the laws of said state or country or with intent to enable any person to violate any provision of
Appellants’ counsel in their brief call attention to numerous authorities which they claim hold that a defendant, in order to avail himself of facts not apparent on the face of the contract to establish its invalidity, must specially plead such facts. No doubt tnese authorities contain a sound statement of the general rule; but we think the rule has certain well-recognized exceptions. If the illegality appears from the contract itself or from the evidence necessary. to prove it, the same may be taken advantage of without specially pleading such fact. We think the correct rule is announced in 9 Cyc. pp. 741, 742, as follows: “In many cases decided under American statutes requiring the fact constituting the cause of action or defense to be pleaded, it has been decided that evidence going to show the illegality of the contract in suit cannot be given under a general denial, or the general issue, if the contract is valid on its face, and the illegality does not appear from plaintiff’s proof; but the defense must be specially pleaded and the facts going to show in what the illegality consists must be stated” — citing many authorities. We will refer to a few of such authorities. Mo., etc., Ry. Co. v. Bagley, 60 Kan. 424, 56 Pac. 759; Suit v. Woodhall, 116 Mass. 547; Finley v. Quirk, 9 Minn. 194 (Gil. 179), 86 Am. Dec. 93; Handy v. St. Paul Globe Pub. Co., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 466, 16 Am. St. Rep. 695; McDearmott v. Sedgwick, 140 Mo. 172, 39 S. W. 776; Fitzgerald v. Fitzgerald, 44 Neb. 463, 62 N. W. 899; Milbank v. Jones, 127 N. Y. 370, 28 N. E. 31, 24 Am. St. Rep. 454. See, also, Miller v. Donovan, 11 Idaho, 545, 83 Pac. 608; Jefferson v. Burnhans, 85 Fed. 949, 29 C. C. A. 481,
One other point remains to be considered. It is respondent’s contention that there was no proof showing that he was a partner with his codefendant in the unlawful business. This contention is based upon two theories: First, that the arrangement between these parties to the effect that respondent was to furnish the building and premises where the business was- conducted, under an agreement that Hillier, his codefendant, should conduct the business and divide the profits, did not constitute a partnership; and second, that an agreement of partnership to engage in an unlawful business is void, and hence no partnership could, in fact, exist. We do not think there is any merit in the last contention. Plaintiff’s rights are not affected by the illegality of the partnership agreement; they not being parties to the illegality. 17 Am. & Eng. Enc. Law (1st Ed.) pp. 92, 93 and cases cited; 22 Am. & Eng. Enc. Law (2d. Ed.) p. 75, and cases cited. The first proposition — that an arrangement by which one person furnishes property for the use of another under an agreement that such other person may use it, and the profits of its use to be divided, does not constitute a partnership — involves a more serious question. Section 5818, Rev. Codes 1905, defines a partnership to be the association of two or more persons for the purpose of carrying on business together and dividing its profits between them. Authorities may be found holding,
In the light of the foregoing rules and after a careful consider•'ation of the evidence in this case, we are convinced that the question -as to whether defendants were partners was properly a question for the jury to determine under instruction by the court as to 'the law, and that it was an error therefore to direct a verdict.
The judgment is accordingly reversed and a new trial ordered.