Prescott v. Norris

32 N.H. 101 | N.H. | 1855

Perlet, C. J.

If the tort or fraud of an infant arises from a breach of his contract, although he may have been guilty of false representations or concealments respecting the subject matter of the contract, he cannot be charged for a breach' of his promise by changing the form of the action. In this case the claim of the plaintiffs arises out of representations made on the sale, which were substantially part of the contract of sale. And false representations made by an infant at the time of his contract, are regarded as so far part of it, that he may set up his infancy as a defence. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, wilful and' positive wrong of itself, then, although it may be connected with a contract, the infant is liable. Fitz v. Hall, 9 N. H. 445.

In Green v. Greenbank, 2 C. Marshall 485, it was held that infancy was a good defence to case for falsely warranting a horse to be sound. We think that the plea of infancy is a good defence to this action, and that judgment must be rendered for the defendant, George ft. Norris, on the verdict finding the issue on that plea in his favor.

The Court are not able to see how the fact would be at all material, whether one half of the other goods, not embraced in the sale of the goods in cellar, were paid for in cash at the time of the sale, or only one quarter in cash and the remainder in notes. The question on this part of the case was, whether there was a deceit and false warranty in the sale of the rum and the pork. On his cross-examination a witness for the plaintiffs stated that the goods above were sold half for cash and half on credit. There is nothing in the case from which we have been able to discover how the evidence could be material; and the evidence not being material, it was not material to contradict it. Besides, the witness, as we understand the case, when recalled, by a correction of his testimony made it to agree with the receipt which was offered by the defendants. We think the verdict is not to be disturbed by the ruling of the Court rejecting the receipt. Wiggin v. Damrell, 4 N. H. 69.

The sale of the pork and spirits was an entire contract, and if in any part illegal was void as to the guilty party. The allegation of the declaration is in substance that on the sale the defendant falsely warranted the quality of the gin and the quality of the pork. The deceit and false warranty are alleged to have been in the sale ; and the claim of the plaintiffs, though the form of the action is in tort, arises out of the contract. Green v. Greenbank, 2 C. Marshall 485.

The liquors being sold without license, the sellers were guilty under the statute of an offence punishable by fine, and they could maintain no action on the contract. If the buyers were in pari delicto, this action cannot be supported.

The statute does not punish the buyer ; he is not guilty of the statutory offence; the unlicensed sale of spirituous liquors is not malum in se, and tbe buyer is not in pari delicto, unless, perhaps, in a case where he buys with notice that the sale is without license, and thus concurs in the commission of the offence.

The sale might be with license, and in that case would be legal. In the absence of all evidence, the buyer cannot be presumed to know that the seller is committing a crime, and no evidence in this case was given on that point. Bloxsome, v. Williams, 3 B. & C. 232; Favor v. Philbrook, 7 N. H. 326. We must, therefore, take it upon this case that the plaintiffs bought the spirits without notice or knowledge that they were sold in violation of the law ; they cannot, therefore, be regarded as participes criminis, and are not in pari delicto.

Bloxsome v. Williams would seem to be very directly in point. The action in that case was assumpsit for breach of the warranty of a horse. The defence set up was that the defendant sold the horse on Sunday, in the exercise of his ordinary calling, in violation of the statute. But the court held that, in the absence of evidence, it was not to be presumed that the plaintiff had notice that the defendant was a horse dealer, and the sale consequently made in the prosecution of his ordinary calling; that without such notice the plaintiff would not be in pari delicto, and might recover.

It is by no means clear that the plaintiffs, even if they had known that the defendants had no license, would be held to have shared in the offence in a way to prevent them from recovering in this action. There is a class of cases in which a statutory penalty is imposed upon one party to an illegal transaction for the purpose of protecting the other party, as in the case of usury, and of the unlawful sale of lottery tickets. In such cases the law does not look upon the parties as standing in pari delicto, and the innocent party is not prevented, by his share in the transaction, from recovering for any injury he has suffered growing out of it. It may be found, when it shall become necessary to decide the question, that the law which punishes the unlicensed vendor of spirituous liquor belongs to this class. Browning v. Morris, Cowper 792 ; Smith v. Bromley, Douglas 696, (note ;) Jaques v. Golightly, 2 Wm. Blackstone 1073.

Judgment on the verdiet against Dudley Norris. Judgment on his flea of infancy, for George M. Norris.