134 A. 384 | Pa. | 1926
The defendant, Ostrow, being engaged in the sale of intoxicating liquor at wholesale, as claimed for non-beverage purposes, at 300 Federal Street, Pittsburgh, entered into a written contract with the plaintiff, Rosenthal, on April 26, 1920, inter alia, as follows: "That the said party of the second part [Rosenthal] shall enter the employ of the said party of the first part [Ostrow], commencing the second Monday of May, 1920, and continue for a period of one year; during which time the said party of the first part agrees to pay him the sum of one hundred ($100.00) dollars per week and ten per cent. (10%) of the net profits of said business, to be determined at the expiration of said year, and to be paid to the said party of the second part provided he, at that time, still is in the employ of the said party of the first part." Owing to delay in closing up his private business plaintiff did not enter upon his duties until June 1st of that year and ended the same with defendant's consent on May 14, 1921. Plaintiff was paid the $100 a week and $5,000 on account of profits and brought this suit for the further sum of $45,000, claimed as the balance of his share thereof. An affidavit of defense was filed and the trial resulted in a verdict and judgment for plaintiff for $9,273.75; defendant has appealed. *90
The judgment cannot be sustained. Defendant had no state license until October 25, 1920; prior thereto his business was wholly illegal, of which fact plaintiff admits he had personal knowledge as early as July of that year. He therefore cannot recover for the profits of an illegal business to which he was a party. In Hazle Drug Co., Inc., v. Wilner et al.,
Defendant testified that the books, such as they kept, were lost while he was in jail under sentence for violation of the liquor laws. There was no attempt to disprove this or to offer secondary evidence of their contents. The nonproduction of the books, while a circumstance against defendant, cannot, without more, supply the entire absence of proof necessary to sustain plaintiff's case.
As to other questions suggested in the record we express no opinion.
The judgment is reversed and is here entered for the defendant non obstante veredicto. *92