77 S.E. 421 | N.C. | 1913
ALLEN, J., concurring; WALKER and BROWN, JJ., dissenting. This was an action begun before a justice of the (410) peace upon two notes for less than $200 each and on appeal consolidated by consent into one action. The notes were executed by the defendant to the plaintiff for whiskey bought from the plaintiff's agent. The order for the whiskey was given in Hendersonville, N.C. to the salesman of the plaintiff company, and the whiskey was shipped *334 by the latter from Cincinnati, Ohio, to Hendersonville, N.C. and delivered to defendant at the latter place, and the notes were executed there.
This was the entire evidence. The issue was, "Is the defendant debted to the plaintiff, and if so, in what sum?" His Honor instruct the jury that if they believed the evidence to answer the issue "No." The jury responded accordingly. The defendant excepted to the instruction and to the judgment, and appealed.
The point before us was expressly decided in Vinegar Co. v. Hawn,
Not only is the contract for the sale of liquor invalid, but the agent was indictable for soliciting the sale. Laws 1908, chap. 118, now Pell's Revisal, 3527a.
It was in regard to such a statute as this that the United States Supreme Court held in Delamater v. South Dakota,
The Court further said: "The business of soliciting proposals in South Dakota was one which that State had a right to regulate, wholly irrespective of when or where it was contemplated the proposals would be accepted or whence the liquor which they embraced was to be shipped."
It is recognized, therefore, by both the State and Federal courts that the contract by which this liquor was ordered was an illegal contract, and that the fact that it was to be shipped here from Ohio did not make the contract valid. It follows that the courts will not enforce the payment of a note given in execution of an illegal contract. The proposition is so fully discussed by Judge Field in Oscanyan v. Arms Co.,
Where a person in this State, at the request of another, agreed to buy cotton futures for him in New York, a contract also made (412) illegal by our statutes, it was held that the person sending the order to New York for the purchase of the futures could not recover his losses. Garseed v. Sternberger,
Where a note was given in consideration of a bet on a horse race in another State, it is not enforcible here. Gooch v. Faucett,
No error. *336