113 Mo. App. 233 | Mo. Ct. App. | 1905
Lead Opinion
(after stating the facts). — 1. It is conclusively shown by the bill of sale that the licenses were included in the things sold by plaintiff to the defendants, and defendants’ evidence is that after the sale, they took possession of the saloon and conducted it in the plaintiff’s name and under his license until the expiration of the State and county license, and that no dramshop licenses were issued to them in their names during this period. Their evidence also is that at the time the trade was made, it was agreed and understood by and between them and the plaintiff that the saloon should be run in his name. The plaintiff admitted that the licenses were mentioned and considered in the trade and confessed, on cross-examination, that he knew the saloon was not closed for an hour after the sale was made; that he knew the defendants were conducting it under his licenses, but denied that there was any agreement that it should be so conducted. There may have been no express agreement that defendants should run the saloon under plaintiff’s licenses but if such was not the understanding, why were the licenses discussed in the negotiations for the sale, and why was plaintiff willing for defendants to have the licenses, and why did he embrace them in the. bill of sale as one of the things sold? Plaintiff’s denial that there was such an agreement is inconsistent with the bill of sale, inconsistent with his other testimony, inconsistent with every other scrap of evidence in the record and inconsistent with the facts and circumstances characterizing the sale and
2. Section 2992, R. S. 1899, prohibits the transfer or assignment of a dramshop (saloon) license. “Transfer” means “the act by which the owner of a thing delivers it to another person, with the intent of passing the rights which he has in it to the latter.” [Bouvier’s Law Diet. (RaAvle’s Rev.), 1133.] One of the definitions given the term by Webster is, “to make over the possession or control of; to pass; to convey as a right from one person to another.” The bill of sale is conclusive evidence of a formal transfer of the license. The transfer of 'the license was as complete as the transfer of the liquor and other things mentioned in the bill of sale and was as effectual as if a written assignment had been indorsed on the back thereof transferring them to the defendants, signed by the plaintiff, and it was no less a transfer, in fact, because it gave defendants no legal right to sell liquor under them, and was void in law because prohibited by statute. For the reason the transfer was void in law, the learned circuit judge was of the opinion that it furnished no part of the consideration for the sale and' therefore did not affect the validity of the sale and that the note is valid, unless it was shown by the evidence that it was agreed that the liquors were to be sold by defendants under the license which had been transferred to them by the plaintiff. This view of the law finds support in the case of Pierce v. Pierce, 46 N. E. (Ind.) 490, where there was a bill of sale of saloon goods and fixtures, including license (the transfer of the license being illegal). The contention of the defendant was that the contract was illegal for the reason the license was transferred along with the saloon goods. The court, at page 483, said: “The answer avers that the ‘stock mentioned in the contract consisted of intoxicating liquors then and there for sale,’ but it does not aver that, Avithout the license to sell, they were of no value. It is only the ‘other property mentioned in the
In Haggerty v. Ice Mfg. & Storage Co., 143 Mo. l. c. 247-8, 44 S. W. 1114, it is said: “The law will not stultify itself by promoting on the one hand what it prohibits on the other.”
In Woolfolk v. Donovan, 80 Mo. App. l. c. 427, the Kansas City Court of Appeals said: “There is no distinction between a contract that is immoral in nature and tendency and therefore void as against public policy and one that is illegal and prohibited by law.” Substantially the same rulings were made in Parsons v. Randolph, 21 Mo. App. 353; Sumner v. Summers, 54 Mo. 340; Shanklin v. McCracken, 140 Mo. l. c. 358-60, 41 S. W. 898; Porter v. Gaines, 151 Mo. 560, 52 S. W. 376; Ullman v. St. Louis Pair Ass’n, 167 Mo. l. c. 284, 67 S. W. 949.
In Patton v. Nicholson, 16 U. S. 204, it was ruled by Chief Justice Marshall, speaking for the court, that where one citizen sells to another citizen of the United States at war with Great Britain, a British sailing license for which a note was taken, the note was void because given for a license under which it was not lawful for an American citizen to sail.
In Miller v. Amon, 145 U. S. 421, it is said: “The general rule of law is, that a contract made in violation of a statute is void; and that when plaintiff cannot establish his cause of action without relying upon an illelegal contract, he cannot recover.”
In Penn v. Bornman, 102 Ill. 523, the court said:
“All contracts made in violation of an express statutory provision are inoperative and void, and no recovery can be had upon them.” The same doctrine is announced in Ohio, etc., Trust Co. v. Ins. & Trust Co., 53 Am. Dec. (Tenn.) 742; Tatum v. Kelley, 94 Am. Dec. (Ark.) 717; Handy v. St. Paul Globe Pub. Co., 16 Am. St. Rep.*246 (Miss.) 695. In the latter case it was held that a void contract was not capable of ratification.
In Gerlach v. Skinner, 55 Am. Rep. (Kan.) 240, it was held that where the consideration for an assignment and transfer of a thing by a mere order to pay another the money due thereon was in part only contrary to a prohibitory statute against fraudulent assignments and conveyances, it vitiated the whole contract.
In Dow v. Taylor, 76 Am. St. Rep. (Vt.) 775, it was held: “If a contract is made in part on an illegal consideration, the whole contract is void.”
The general rule is well stated in the Cyclopedia of Law and Procedure, vol. 9, page 566, as follows: “If any part of a single consideration for one or more provisions be illegal, or if there are sevc- l considerations for one promise, some of which are legal and others illegal, the promise is wholly void, as it is impossible to say which part or which one of the considerations induced the promise.”
■ ' The written contract of sale is conclusive that the license was one of the things contracted for, and the consideration being single and indivisible, it seems to us that part of the single and inseparable consideration .being void the contract as a whole is void because opposed to positive law enacted by the Legislature concerning dramshop license. But it is contended that the insertion of the word “license” in the bill of sale was without legal effect and that the mere knowledge of the plaintiff that defendants intended to use it for an illegal purpose did not vitiate the contract. Aside from felonies and crimes the majority of the decisions hold that the mere knowledge of the seller or the lender that the purchaser or borrower intends to use the article sold or money borrowed for an illegal purpose does not invalidate the contract. [Michael v. Bacon, 49 Mo. 474; Howell v. Stewart, 54 Mo. 400; Sprague v. Rooney, 82 Mo. 493; Cockrell v. Thompson, 85 Mo. 510; Prince v. Church, 20 Mo. App. 332; Kerwin & Co. v. Doran, 29
But this doctrine applies to sales of legitimate articles of commerce that may be lawfully sold at the place •of sale. It has no application to sales of things prohibited, and when it does apply the courts require but slight aid by the seller, in connection with his knowledge that the purchase is for an unlawful purpose to defeat the contract. Thus in Gaylord v. Soragen, 32 Vt. 110, where the seller marked packages of intoxicating liquors in order to aid the purchaser in quickly identifying and removing them on arrival at destination (where they could not be lawfully sold) before the officers had their suspicions aroused, it was held such aid for the unlawful purpose of the purchaser as to defeat a recovery. In Aiken v. Blaisdell, 41 Vt. 655, and Fienman v. Sachs, supra, similar rulings were made.
Discussing the question of aid given by a seller- to •a purchaser in order to carry out the latter’s unlawful purpose, the court, in Standard Furniture Co. v. Van Alstine, 51 L. R, A. l. c. 891, 22 Wash. 670, said: “If the vendor has knowledge of the immoral or illegal design of the vendee, and in any way aids or participates in that design, or if the contract of sale is so connected with the illegal or immoral purpose or transaction of the vendee as to be inseparable from it, the vendor cannot recover. [Tatum v. Kelley, 25 Ark. 209, 94 Am. Dec. 717; Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132; Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154; Aiken v. Blaisdell, 41 Vt. 665; Schankel v. Moffatt, 53 Ill. App. 382; Ralston v. Boady, 20 Ga. 449; Webster v. Munger, 8 Gray
In Smith v. Godfrey, 8 Foster 379, it was held that if it enters at all as an ingredient of the contract between parties, that the goods shall be illegally sold or that the seller shall do some act to assist or facilitate the illegal sale, the contract will not be enforced.
In Tatum v. Kelley, 25 Ark. 209; it was held that contracts which controvert the law are void and courts will never lend their aid to enforce them, and where the intention of one of the parties is to enable the other to violate the law',' the contract is void.
The evidence clearly shows that the license entered as an ingredient into the sale, and the plaintiff’s evidence shows that he not only knew' that defendant intended to use his license in violation of the law, but that he aided them in their unlawful purpose by transferring the license to them and turning his saloon over to their possession to be conducted by them without license. We think, on plaintiff’s theory of the case, this wras sufficient aid to render the entire contract void and that plaintiff should have been nonsuited, independent of the statute declaring a dramshop license non-transferable it clearly appears by the dramshop act that such a transfer cannot be lawfully made. The act prohibits thé sale of intoxicating liquors in less quantities than three gallons by any person other than a licensed dram-shop keeper; it requires the county court to find that the applicant is a law-abiding, assessed taxpaying, male citizen, over twenty-one years of age, as a prerequisite to granting the license; it requires that the applicant; shall obtain the consent of the taxpaying citizens in the locality to be affected by the dramshop that he may keep the proposed dramshop and that this consent shall be made known to the county court by a petition signed by the taxpaying citizens; it requires the
The judgment is reversed.
Concurrence Opinion
(concurring).- — I concur with Judge Bland in all that is said in the very able opinion prepared by him. It occurs to me, however, that if there could be any question as to the intention to include and transfer the dramshop licenses,, that the acts and conduct of the parties at the time clearly demonstrate what that intention was. Plaintiff' testifies that he knew the licenses were going into the deal “if they (defendants) wanted them,” that he went, out of business on Monday morning and defendants “immediately” stepped into possession and the business was. never closed nor suspended for one. moment on account-of the transfer of ownership. Plaintiff admits that “in fact there was not even time for an application for a
This' action of the parties, then and there at the time, is conclusive to my mind upon the question of their intention and it is a construction of the contract or bill of sale, clearly showing that all parties intended at the time that defendants should continue the business under the old licenses. It is always proper to look at the conduct of the parties at the time, acting under and in furtherance of the contract, when we seek to arrive at their intention. Such conduct is entitled to great, if not controlling effect. [Am. & Eng. Ency. Law (2 Ed.), vol. 17, p. 23; Patterson v. Camden, 25 Mo. 13; Jones v. Delassus, 84 Mo. 541; City of St. Louis v. Laclede Gaslight Co., 155 Mo. 1, 55 S. W. 1003.] “I know no better mode of ascertaining this meaning than is shown if all the parties acted on a particular meaning.” [Union Depot Co. v. Railroad, 131 Mo. l. c. 305, 31 S. W. 908; Whitehead v. Bank, 2 W. & S. 175.] “In case of doubt as to the significance of such term, the contemporaneous practice of the parties to the agreement regarding it (before any controversy arises) sheds light upon their probable meaning and use.” [Ellis v. Harrison, 101 Mo. l. c. 279, 16 S. W. 198.]
It occurs to me that whatever may be the testimony in a matter of this kind, after a controversy arises, it will not justify a court in losing sight of the construction placed upon the bill of sale by the parties at the time of its execution and delivery of possession thereunder. When the parties, by their acts and conduct, deliberately place a construction upon their contract, which construction is in consonance with its provisions and in furtherance of its plain terms, the courts are not at liberty to disregard such construction. [Jones v.
I agree with Bland, P. J., in reversing the judgment.
Dissenting Opinion
(dissenting). — The plaintiff swore that he did not know the bill of sale included the licenses, though he was willing for the defendants to have the licenses if they desired them. Plaintiff testified further that there was no arrangement between him and the defendants that the latter were to conduct the saloon in his name and under his licenses and that he knew nothing of how the business was conducted after he sold. The court left it to the jury to say whether or not there was an agreement between plaintiff and defendants in regard to what licenses the business should be run under after the sale and that a verdict should be returned in plaintiff’s favor if they found there was no agreement about the matter. In other words, the court ruled that the mere attempt to sell the licenses would not vitiate the entire contract of sale between the plaintiff and the defendants and prevent the former from recovering on the note in suit, unless both parties intended that the licenses which plaintiff held, should be utilized by the defendants in conducting the business. These two instructions will show the court’s theory of the case:
“If you believe from the evidence that defendants offered and agreed to pay plaintiff f8,000 for his saloon business, ■ and plaintiff accepted, and defendants paid part of such price in cash and part in the note sued on, and plaintiff executed and delivered the contract introduced in evidence and marked Exhibit ‘B’ and delivered possession of such business to defendants, and there was no agreement between plaintiff and defendants as to the manner in which defendants should do business or under what license it should be run, then your verdict will be for plaintiff, even though you further find and believe from the evidence that thereafter defendants sold liq*252 uors at the Joplin Hotel Bar, unlawfully or without license therefor, or sought to do business under the li- * cense issued to plaintiff and plaintiff knew such facts.”'
“The court instructs the .jury that this case is an action for the balance claimed to be due on' a certain-promissory note given by the defendants, S. H. Sander-son and George H. Thomas, .to the plaintiff Thomas Sawyer. It is claimed by the defendants that, the consideration of the note sued on was the sale and transfer of a certain stock of goods with which the Joplin Hotel Bar in the city of Joplin, Jasper county, Missouri, was stocked, consisting of all goods belonging to plaintiff and used in said saloon, together with the license of said Thomas Sawyer used in connection with the operation of said saloon, and also the good will, etc., to the said saloon, and the court further instructs that if you should find from- the evidence that the consideration of the note-sued on, or any part thereof, was for the sale and transfer of the saloon or dramshop keeper’s license of said plaintiff to defendants, and that it was agreed that intoxicating liquors were to be sold under said license, then your finding should be for the defendants.”
The attempt to transfer the license was, of course, a failure; but I'fail to see how that necessarily vitiated the entire transaction. It is argued that the evidence conclusively shows plaintiff agreed that the defendants should conduct the business under the old licenses and was a party to an arrangement of that kind. I think that on the evidence the question of whether he did or not was one of fact for the jury and was properly submitted. Presumably the plaintiff was not concerned as to whether the defendants attempted to continue business under the old licenses or procured new ones. What he wanted was to sell his property and business and if the vendees chose to include in the contract of sale, dram-shop licenses which were non-assignable, it was a matter of indifference to him. In truth the word “licenses” may have been inserted in the bill of sale to escape pay
