309 Mass. 519 | Mass. | 1941
Section 25 of G. L. (Ter. Ed.) c. 138, as inserted by St. 1933, c. 376, § 2, contains this provision, “It shall be unlawful for any licensee under section twelve or fifteen to lend or borrow money or receive credit, directly or indi
In January, 1940, the plaintiff was a wholesaler of alcoholic beverages, and Robert C. Cann conducted a restaurant in Revere with a bar for the sale of alcoholic beverages. The defendant was incorporated for the purpose of acquiring and continuing Gann’s business. Cann was indebted to the plaintiff for liquors purchased by him of the plaintiff. The local licensing authority granted the defendant’s application for a license to sell alcoholic beverages similar to that held by Cann, but the plaintiff filed with the alcoholic beverages control commission a protest against any approval of the defendant’s license by the commission. See G. L. (Ter. Ed.) c. 138, § 12, as inserted by St. 1933, c. 376, § 2, and as amended. On January 31, the defendant executed and delivered to the plaintiff an agreement reciting that in consideration of the withdrawal of the plaintiff’s protest against the “transfer” of the license the defendant agreed to pay to the plaintiff, beginning two days after the approval of the “transfer” and continuing over a period of eight months, specified instalments of money, the total of which aggregated the total sum then owed by Cann as an individual to the plaintiff. It does not appear that before making this agreement the defendant owed the plaintiff anything. This action is brought to recover unpaid instalments alleged to be due under the agreement. The trial judge found as facts that the consideration for the defendant’s agreement of January 31 was the plaintiff’s withdrawal on the same day of its protest to the alcoholic beverages control commission against the “granting” of a license to the defendant, and that on the same day the commission approved the license, and on the same day the defendant began to do business under it.
The statute rendered the agreement illegal. The agree
The plaintiff contends that the agreement was not illegal because the defendant had not actually become a “licensee” when the agreement was delivered. One obvious answer to this contention is that by the terms of the agreement itself the defendant’s obligation to pay would arise only after the approval by the commission of .the “transfer,” and then the defendant would be a “licensee.” In other words, the purpose of the agreement was to bring about the relation of creditor and debtor between a “wholesaler” and a “licensee” • — the very thing the statute was designed to prevent.
The judge rightly ruled that the defendant’s failure to plead illegality in its answer did not preclude him from considering that question, especially in a case like this where the pertinent facts are undisputed, if indeed they do not appear from the plaintiff’s declaration alone. Cardoze v. Swift, 113 Mass. 250. O’Brien v. Shea, 208 Mass. 528, 535. Morello v. Levakis, 293 Mass. 450, 451, 452. And in any event, in such a case, the defence is open here. Claflin v. United States Credit System Co. 165 Mass. 501, 503. Coughlin v. Royal Indemnity Co. 244 Mass. 317, 319. Reuter v.
A so called “appeal” printed with the record does not come within the provisions of G. L. (Ter. Ed.) c. 231, § 96, and must be dismissed. See Universal Adjustment Corp. v. Midland Bank, Ltd. of London, 281 Mass. 303, 310.
Appeal dismissed.
Exceptions sustained.
Judgment for the defendanU