Boyd v. Eaton

Appleton, J. This was an action of assumpsit upon an account annexed. It appeared in evidence that the plaintiffs, having a stall and stock of goods in the Market House in Bangor, sold on the 29th of December, 1856, to the defendant, their fixtures, and such articles of their stock as he might [54] select; that he selected those specified in the account in suit, among which are found various articles, the sale of which is prohibited by law. The articles are all charged as of the same date, but separate prices were affixed to each article. At the trial at Nisi Prius, the plaintiff’s counsel moved to amend by striking out of the account the articles, the sale of which was unlawful. This amendment was allowed, against the protest of the counsel for the defendant. It was insisted in argument, that the sale of goods, as above stated, constituted an entire contract; that being entire, it is void by the statute prohibiting the sale of spirituous liquors; and that the presiding judge erred in allowing the amendment. It was held in Drew v. Blake, 38 Maine R., 528, that in a suit upon an account, some of the items of which were for spirituous liquors sold in violation of law, that the plaintiff might amend by striking out the items for liquor, and recover on the account thus amended; The account in that case embraced some months, during which the articles were delivered, and it is urged that as they were sold at different times, they may be regarded as several sales, and that therein it differs from the case at bar. But the precise question under consideration came before the Supreme Court of New Hampshire, in Walker v. Lovell, 8 Foster’s R., 138, and in Carleton v. Woods, 8 Foster’s R., 291, where it was held that when an entire stock of goods is sold at one and the same time, but each article for a separate and distinct agreed price, th’e contract of sale is not to be regarded as entire and indivisible, and if the sale of some of the articles be prohibited by law, the illegality will not render the sale of the other articles illegal also. “We are unable,” says Woods, J., “to see how this case differs from the case of a sale by a merchant of various goods to his customer, at one and the same time, for separate values, stated at the time, which, when computed, would of course amount to a certain sum in the aggregate. When in such case the goods are charged to the customer, and the sale of part of the goods should be found to be illegal, we [55] think it would be difficult to maintain upon any legal or equitable principles, that under a proper declaration, the value of the goods which were proper and legal articles of sale, could not be recovered.” In the case before us, the defendant was to select such goods as he might choose. Each article selected had its appropriate price. The bargain for its purchase was several and distinct. The defendant ought not to be permitted to evade the payment of articles legally sold, because he may have subsequently elected to purchase other articles at an agreed price, the sale of which was prohibited by statute.. Default to stand.