134 A. 246 | Conn. | 1926
This action was brought by a complaint based on a note in these terms:
"$950.00 Waterbury, Conn., Jul. 19, 1923.
Two weeks after date I promise to pay to the order of Joseph Lokes nine hundred fifty and 00/100 dollars, payable at office of Ch. Kazemekas' Banking House. Value received."
The defendant pleaded by way of answer, that the consideration for the note was the purchase price of a saloon business owned and conducted by the plaintiff, together with a stock of intoxicating liquors therein, which were on the day of sale being sold contrary to law. These allegations the plaintiff denied. The defendant thus alleges as a defense that there was an illegal consideration for the note and claims that it is not enforceable.
We take up the defendant's reasons of appeal. The court in its charge presented to the jury the issues of fact raised by the denial of the answer, and the jury *707 found these issues for the plaintiff and rendered a verdict for $950, the face of the note. Upon the subject of the illegality of the note, the appellant claims that "the court erred in failing to charge the jury that, if the plaintiff sold to the defendant a bar or establishment which was, or [was] reputed to be, a place where spirituous and intoxicating liquors were sold contrary to law, and that the sale of this business formed the sole or a part consideration for the note in question, the plaintiff could not recover."
Section 3 of Chapter 291 of the Public Acts of 1921 reads as follows: "Every person who shall keep a bar or establishment which is or is reputed to be a place where spirituous and intoxicating liquors are kept for sale or exchange contrary to law, shall be subject to the penalties provided in section ten of this act."
The essential portion of this section of the Act, under the record in this case, is the provision that "every person who shall keep a bar or establishment which is . . . a place where spirituous and intoxicating liquors are kept for sale or exchange contrary to law, shall be subject to the penalties," etc.
The trial court thus charged the jury upon this point: "The claim of the defense is that the consideration for this note was the sale by the plaintiff to the defendant of the interest of the plaintiff in a certain saloon business, including the stock of spirituous and intoxicating liquors contained in the saloon, and also five gallons of liquor which had been paid for and were later to be delivered to the defendant's place of business, and that this was the only consideration.
"By saloon business, as I use the term in these instructions, I use it synonymously with the terms of conducting the sale of spirituous and intoxicating liquors. The business of buying and selling spirituous and intoxicating liquors, except under certain prescribed conditions *708 which it is not claimed are present in this case, is an illegal business. And therefore, if you should find that the only consideration for which this note was given was the sale of a saloon business, or if you find that the consideration or a part of the consideration included any stock of spirituous and intoxicating liquors, then such consideration is illegal and is no consideration upon which payment could be enforced. And if you find that the sale of this business by the vendor to the vendee, included any spirituous and intoxicating liquors, even though the quantity were small, if it in fact constituted a part of the consideration for which this note was given, then such consideration renders the note void.
"It is claimed by the defendant in this case that at least a part of the consideration for which this note was given was for spirituous and intoxicating liquors which were in this place, and five gallons referred to of spirituous and intoxicating liquors which were to be delivered; that these spirituous and intoxicating liquors included whiskey, and that this whiskey was sold with the articles described in the bill of sale and with the business conducted at the place in question. If you find that any spirituous and intoxicating liquors were included in the consideration for which this note was given, then your verdict must be for the defendant, since it does not appear in this case that the plaintiff could sell legally to this defendant any spirituous and intoxicating liquors."
The charge given fairly and adequately presented to the jury the defense alleged and sought to be proved.Funk v. Gallivan,
If the record disclosed (which it fails to do) that the defendant offered evidence to prove that the premises in question were a place which was reputed to be a place where spirituous and intoxicating liquors were *709
kept for sale or exchange, the charge would still be correct, because the ultimate question would be, was it a place where such liquor was in fact kept for sale or exchange? This is established by the familiar cases of State v. Morgan,
The appellant alleged also that "the court erred in failing to charge the jury as to the measure of damages to be recovered in this action." Upon the state of the pleadings the plaintiff was obviously entitled to recover the face of the note with some interest, or nothing.
The jury rendered a verdict merely for the face of the note. There was then an obvious ground of error for the plaintiff, but he made no such claim of error. The defendant cannot claim as an error harmful to him, a technical error which was merely harmful to the plaintiff.
There is no error.
In this opinion the other judges concurred.
