Miller v. . HowellMiller v. . Howell
There are various exceptions noted by the appellant, more •especially as to the determination of the second issuе, that as to the procurement of the contract by fraud, the objections being chiefly to the admission and consideration of evidenсe in contravention of the written stipulations of the contract that defendant “would adhere and be strictly bound by its-terms, and releasing the vendоr from any verbal agreements or conditions not mentioned on the face of the order.”
As pointed out in some of our decisions on thе subject, restrictions of this character may be made effective where they appear in a written agreement which abides as thе contract of the parties and is controlling in the controversy between them, but they are not allowed to prevail on an issue of frаud involving the validity of the contract itself, and the statements of the agent are offered as tending to show false and fraudulent representations inducing the contract and pertinent to such an issue.
Machine Co. v. Bullock,
The matter is not further pursued, however, for in our opinion, and regardless of any finding on thе second issue, no recovery can be had on this note for the reason that same grows out of and is dependent on a transaction forbidden and made criminal by the Public Laws of the State. In 1909, ch. 556, C. S., 4742, it is provided that this foodstuff, or conditioner, the subject-matter of the contract, shаll not be sold or offered for sale in this State until the appellant shall file with Commissioner of Agriculture a statement of his purpose, and alsо for registration a duly verified certificate as to its qualities, and also file with said commissioner a labeled 'package of each brand, etc.
In section 4743, a registration fee of $20 is required. Section 4744 provides that any person, corporation, or agent who shall оffer fo.r sale any of these articles without having complied with the statutory requirements appertaining thereto shall be guilty of a misdemeаnor, etc. And section 4749 closes with the provision that this legislation is designed to protect the public from deception and fraud in the salе of these specified products.
It clearly appears in this record, and was practically admitted on the argument, that, in regard to this stock and poultry conditioner, the subject-matter of this contract, and for which the note was given, there was an entire failure to cоmply with these statutory provisions, and, under our decisions applicable, we must hold that the note is not enforceable, assuredly so as bеtween the parties, or as to persons who take without value or with notice of the infirmity.
Courtney v. Parker,
*122
It is insisted for tbe appellant that, tbe statute not hаving avoided tbe contract in express terms, tbe statutory provision by indictment is alone available, to be prosecuted by tbe State, аnd that- tbe Court in' effect bas so beld in
Ober v. Kaizenstein,
In our view, tbe law aрpertaining to these facts and the distinction between tbis and tbe case of
Ober v. Katzenstein, supra,
are correctly given in
Courtney’s case, supra,
as follows: “It is well established that no recovery can be bаd on a contract forbidden by tbe positive law of tbe State, and tbe principle prevails as a- general rule whether it is forbidden in express terms or by implication arising from tbe fact that the transaction in question bas been made an indictable offense or subjected to tbе imposition of a penalty.
Lloyd v. R. R.,
In Pinney’s case, supra, it was beld that, “Where a statute expressly provides that a violation thereof shаll be a misdemeanor, a contract made *123 in direct violation of tbe same is illegal, and there can be no recovery thereоn, though the statute does not in express terms prohibit the contract and pronounce it void.”
And in Lloyd’s caso, supra, the position is stated as follows: “It is very generally held, universally so far as we are aware, that an action never lies when a plaintiff must have his claim, in whole or in part, on a violation by himself of the criminal or penal laws of the state.”
True, there are many cases.which hold that the imposition of a-penalty, without morе, will not always have the effect of avoiding the contract, but that when the agreement is not immoral or criminal itself, the courts, on perusal of the entire statute, its language, purpose, etc., may determine whether it was the meaning and intent of the Legislature to restrict the operation of the law to the penalty as expressed and specified therein or give it the further effect of avoiding the contract. To this principle may be referred the decisions as to the effect of penalties under the usury statutes and those in enforcement оf the collection' of taxes, etc., and, generally, the cases of
Ober v. Katzenstein,
On this record we are not called on to determine whether рayment of the note could be enforced by a bona fide endorsee for value and before maturity, for the jury have found, and with no valid exception noted, that plaintiff is neither a holder for value nor without notice, nor even before maturity; and, therefore, his claim is affected’ with any of the infirmities available as between the original parties.
There is no reversible error in the record, and the judgment on the verdict is affirmed.
No error.