Walan v. Kerby

| Mass. | Jan 15, 1868

Foster, J.

“ All payments or compensations for spirituous or intoxicating liquors sold in violation of law, whether in money, labor or personal property, shall be held to have been received without consideration, and against law, equity and good conscience.” Gen. Sts. c. 86, § 61. This explicit and stringent provision of the statute admits of no other construction than that such payments may be recovered back in an action for money had and received. The seller and buyer of intoxicating liquors sold in violation of law are not in pa/ri delicto, because the latter is guilty of no offence. Commonwealth v. Willard, 22 Pick. 476. Commonwealth v. Downing, 4 Gray, 29. When the purchaser seeks to recover back the price he has paid, the illegality of the transaction, of which he offers evi« dence, is wholly on the part of the defendant, and he himself is not particeps criminis. The manifest intent of the section above cited, according to the only construction of which it is fairly susceptible, was to confer such a right of action. From motives of public policy, the legislature has deemed it expedient, notwithstanding a degree of delinquency in both parties, to inflict, criminal punishment upon the seller only, and also to allow the purchaser to recover back the price he has paid under the illegal contract.

The allowance of the illegal items by way of set-off can have no greater effect than would have been given to their actual payment in cash. In the present case, there was no adjustment of unliquidated claims or compromise of disputed demands on either side. Nothing was done except to ascertain and pay the difference between a larger and smaller account. We cannot treat this payment as an accord and satisfaction sufficient to preclude future inquiry into the illegality of a part of the items. Donohue v. Woodbury, 6 Cush. 148. Alvord v. Marsh, 12 Allen, 603. Tuttle v. Tuttle, 12 Met. 551. They were necessarily as well as actually embraced in the settlement. If a balance had been struck without them, there would have been no consideration to support even an express promise to accept the smaller sum paid in full discharge of the larger sum actually due. Such an agreement being without consideration as to the excess, notwithstanding a receipt in full, the difference could still be recovered. Brooks v. White, 2 Met. 285. Twichell v. Shaw, 10 Cush. 48.

We do not need to consider the question whether proof of the allowance of illegal items in the settlement of a mutual account would support an action for money had and received. The declaration upon an account annexed may be used whenever one or more items are claimed which would be correctly described by either of the common counts. Gen. Sts. c. 129, § 2, cl. 7. The account in this case is for board, as well as money, and the board still remains due unless it has been paid by cred • iting the purchases of intoxicating liquor.

Exceptions overruled.