38 Wash. 398 | Wash. | 1905
This action was brought to recover the sum of $350 on account of wines and liquors sold by the plaintiff to defendant, at her special instance and request. The answer was a general denial, and an affirmative de
The question presented is this: Does knowledge, on the part of the vendor, that property which he sells will or may be used for an illegal purpose, bar an action to recover the purchase price? Under the great weight of authority, we think that it does not, unless the vendor aids or participates in the illegal’ purpose in some manner beyond the mere act of making the sale. Such is acknowledged to be the weight of authority in Standard Furniture Co. v. Van Alstine, 22 Wash. 670, 62 Pac. 145, 79 Am. St. 960, 51 L. R. A. 889, cited and relied on by the respondent; and the decision in that case was placed upon the ground that the vendor, under its conditional sale, retained the title and right of possession of the property used for illegal purposes, and, to that extent, aided and participated in the conduct of the illegal business in which the purchaser was engaged. The question here involved underwent an elaborate discussion in Tracy v. Talmadge, 14 N. Y. 173, 67 Am. Dec. 132, and Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205. Both courts, after a full review of all the cases, English and American, reached the conclusion that knowledge of the illegal purpose to which the
“The agent who made the sales, upon whose testimony the defendant saw fit to rest her case; knew that she was engaged in the unlawful business of keeping a house of ill fame, and admits, also, that he supposed the beer would be used or sold in her place of business. Nothing further was shown which connected the plaintiff or its agent with any violation of the law. The burden was upon the defendant to show that an enforcement of the contract would be in violation of the settled policy- of the state, or injurious to the morals of its people, and no court should declare a contract illegal on doubtful or uncertain grounds. And it may be difficult to distinguish between the cases in which the vendor, with knowledge of the vendee’s unlawful purpose, does not become a confederate; and those wherein he aids and assists to an extent sufficient to vitiate the sale; but this difficulty is not apparent in the casé at bar.”
We are therefore of opinion that, where property is sold absolutely and unconditionally, mere knowledge on the part of the vendor that the property will thereafter be sold illegally, or applied to some illegal or immoral use, will not bar an action to recover the purchase price, unless it is a part of the contract of sale that the property shall be so sold or used, or unless the vendor aids or participates in the illegal objects otherwise than by the mere act of making the sale. Some of the cases hold that, if the unlawful use amounts to a felony, or other crime involving great moral turpitude, the rule is otherwise. That question is not now before us, and we express no opinion in regard to it.
For the reasons stated, the judgment of nonsuit is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
