77 N.Y.S. 378 | N.Y. App. Div. | 1902
This' action is brought upon a promissory note executed by the defendants, and delivered to the plaintiffs upon the 28th of- September, 1900. The defense is that the note is invalid because given for the price of beer sold by the plaintiffs and! delivered in Vermont, in violation of a statute of that State. The facts upon which this defense rests are as follows : The defendants were contractors, constructing a railroad in the State of Vermont, and employing some 1,500 men upon the work. These men boarded with certain boarding-house keepers, including, among others, two. persons named Paracenti and Cammarratta. Defendants,- by their consent, kept
These facts are found by the trial court upon undisputed evidence and the legal conclusion was drawn therefrom that this note was invalid, because given in payment of orders given by Paracenti to Mazzoni and by Mazzoni to plaintiffs in payment for beer sold in violation of the Vermont statute. The correctness of this legal conclusion is the sole question involved upon this appeal.
We are of opinion that the legal conclusion does not follow the facts found. We need not discuss whether the sale was in New York or Vermont. Nór need we determine whether plaintiffs could have recovered the value of this beer from Mazzoni. Nor whether Mazzoni could have recovered therefor from Paracenti and Oammarratta. We may assume for the argument that the original sale to Mazzoni was illegal and each sale thereafter. Nevertheless it seems to be settled- that the parties to an illegal contract may waive the illegality and the purchasers of this beer could pay therefor if they so desired. This they have sought to do. This defense is not made by any purchaser of this beer. The purchasers, whether or not by legal duty bound, have paid their bill and turned over to
This principle of law' has abundant support of authority. In Thayer v. Partridge (47 Vt. 423) the syllabus reads: “A trustee having money in his hands derived from the illegal sale of intoxicating liquor by him as agent of the principal defendant, cannot set up as a defense the illegality of the transaction by virtue of which he received the money.” In Woodworth v. Bennett (43 N. Y. 273) it was held that when a party pays money to a third person for the use of another, which, on account of the illegality of the transaction, he was not obliged to pay, such third person cannot interpose the defense of illegality. In Merritt v. Millard (4 Keyes, 208) the same principle was held. In the opinion it was said: “ Brewster had the right to waive the defense of the illegality of this contract and pay the money, and when he had done so and placed it in the defendant’s hands upon the simple'trust that he should pay it over to the plaintiff, the laws enjoin the duty upon the defendant to pay it, and will not permit him to set up this defense.” Again, “ It is not to be doubted that it is competent for a party to waive the defense of the illegality of a contract in which he himself participates and to affirm the same so far as the parties are concerned.”
Plaintiffs’ recovery upon this note is no affirmance of illegality, The assignment to plaintiffs by Mazzoni needs no consideration. It is good as a gift, and the same is true of the orders by Paracenti and Cammarratta to Mazzoni drawn on defendants. This money, then, the defendants lawfully owe to plaintiffs or their workmen, The workmen make no claim therefor, having transferred the same to plaintiffs, waiving, if need be, any illegality in the consideration •of the transfer.' We think plaintiffs’ right to recover seems clear. Judgment should be reversed.
All concurred.
Judgment and order reversed on law and facts and new trial granted, with costs to appellants to abide event.