39 Iowa 435 | Iowa | 1874
Section 1571 of the Revision provides that all money or property paid for intoxicating liquor, sold in violation of law shall be held to have been received in violation of law, and against equity and good conscience, and upon a valid promise and agreement of the receivers, in consideration thereof, to pay on demand, to the person furnishing such consideration, the amount of such money or property. The jury found the existence of every fact essential to the plaintiff’s recovery, except the assignment to him of Oroy’s' interest in the claim. Upon this finding it is claimed by the appellant that the verdict of the jury is not sustained by the evidence, and that it is clearly the result of mistake, prejudice or passion, Three witnesses testified respecting the assignment, the plaintiff, and his attorneys, D. Herron and M. A. McCoid. Plaintiff testifies that he was a member of the firm of Croy & ■'Woodward, that lie became owner of Croy’s interest in the ■claim by purchase, that he gave the assignment to McCoid. Herron testifies that the assignment Woodward speaks of was brought to the office of McCoid & Herron, prior to the commencement of this action, and that McCoid, his partner, put it away. McCoid testifies that he drew the form of the assignment, and it was afterward copied by the parties. That the paper was given to him about the time he drew the petition, perhaps a month or two before. That he has made a pretty thorough search for it and cannot find it. That he read the assignment through when it was handed to him, and that he 'referred to it once afterward, since the commencement of -the suit. He testifies to the contents of the assignment, and says it named particularly this claim.
This witness stated also that his firm had a contingent fee in the case, of one-half the judgment. The. defendant introduced no testimony respecting the assignment. ■ Upon substantially this testimony the jury found there was no assign•ment of Croy’s interest to plaintiff. It is insisted by appellee that the circumstances of the case justify .the jury in disregarding the testimony of these witnesses; that they ,are all interested in the result of the suit; that McCoid and Herron had a safe for the preservation of valuable papers, and McCoid
It is true that the constitutionality of the statute, punishing as a crime the unlawful sale of intoxicating liquors, is sustained under the genei’al power to make proper police regulations. But the provision which takes away the right to X’ecover the price of liquors unlawfully sold, is assimilated to the statute denying the light to recover usurious interest. And the conferring the l'ight to x-ecover the price of liquoi’s paid is of like ehai'actei'. The l-emedy is enfoi’ced by a civil action, and is in all inspects govex'ned by the rules applicable to such action.
Reversed.