Stansfield v. Kunz

64 P. 614 | Kan. | 1901

The opinion of the court was delivered by

Greene, J.:

The evidence supports the finding of the jury, that the sale of the stock was an entirety. It was not the intention of Stansfield to sell, or Kunz to purchase, a part of this stock of goods. It was their intention that the entire stock should pass by the sale. Under the law of this state, no person has a right to sell or contract for the sale of intoxicating liquors unless he has a druggist’s permit for that purpose, and then only to sell for mechanical, medical and scientific purposes, or to some other druggist who also has a right to sell by reason of having a druggist’s permit. Every contract for the sale of intoxicating liquors by a person who has not a druggist’s permit, and every sale which is made for other than mechanical, medical and scientific purposes, unless it be to a druggist having a permit, is illegal. (See Korman v. Henry, 32 Kan. 49, 3 Pac. 764; Gerlach v. Skinner, 34 id. 86, 8 Pac. 257; National Bank v. Gerson, 50 id. 582, 32 Pac. 905.).

The plaintiff in error in this case had a druggist’s permit. This gave him the privilege of selling intoxicating liquors for mechanical, medical and scientific purposes ; it also gave him the right to sell intoxicating liquors in quantities not less than one gallon to any druggist within the state holding a permit as provided by law. Kunz did not hold a druggist’s permit, and therefore the plaintiff in error could not sell to Kunz. The inhibition of law is not upon the purchaser but upon the seller, and had this agreement to sell been consummated, plaintiff in error would have been guilty of a misdemeanor. Such contracts are illegal. If it had been fully consummated the court would not have relieved either party. Its illegality •consists in plaintiff in error’s contracting to sell to a person to whom the law forbids a sale, and not in the purchaser’s contracting to purchase, because the law does not forbid his doing so. The parties are therefore not in'equal fault. The duty imposed by the law was placed upon the plaintiff in error and not upon the defendant in error. (Mason v. McLeod, 57 Kan. 110, 45 Pac. 76.) A party to an executory illegal con--' tract who is not in pari delicto may not only rescind, but may, if he has advanced money on such executory; contract, recover the same. (Mason v. McLeod, supra; Hooker et al. v. De Palos et al., 28 Ohio St. 262; 2 Pars. Cont. 746; Skinner v. Henderson, 10 Mo. 205; Bernard v. Taylor, 23 Ore. 416, 31 Pac. 968, 18 L. R. A. 859.)

The plaintiff in error, on the trial, offered to prove that he had placed this drug-store in the hands of an agency to sell; . that this agency was instrumental in, bringing about the sale to Kunz; that afterward an action was brought against him for a commission, and that he was put to expense in defending the same. The court excluded this evidence, on the ground that it was too remote. . In this we think there was no error.

Another answer to this contention is that plaintiff in error could prove this fact only through his own illegal contract, and there is no precedent to be found showing that one may recover damages through the establishing of a contract illegal as to himself.

The judgment of the court "below is affirmed.