Goodwin v. Clark

Peters, J. The suit is upon an account annexed, containing two different claims, one for personal services rendered, and the other for merchandise sold. The plaintiff charged $272 as wages for his services, and that sum with interest would just equal the amount of the verdict returned. Taking the testimony of the plaintiff to be true and discarding that of the defendant who testified, which the jury might do, and the verdict can stand. There was enough in the case to authorize the jury to find that the plaintiff did not sell liquors as any part of the business for which he was employed. But the defendants contend that the plaintiff is debarred from recovering at all, because one of the items in the account sued, charged under the head of cash, was really not cash, but was intended to represent a quantity of liquors illegally sold to them by the plaintiff. But the plaintiff is not to fail upon his claims altogether, merely because he sues in the same action for items legal and items illegal, each class of which would support a separate action of itself, (but for the illegality,) and having no other connection than that they are embraced in the same account annexed in a single suit. Nor has it in this state ever been so decided. In Towle v. Blake, 38 Maine, 528, it was held that where the objectionable items were struck out by an amendment, no objection was left. Boyd v. Eaton, 44 Maine, 51, is to the same effect. See also Plummer v. Erskine, 58 Maine, 59. Besure, the statute inhibits the maintenance of any action upon any claim or demand contracted or given for intoxicating liquors. But this action is upon several distinct and independent demands. The claims sued are not an entirety. The plaintiff can sustain his item for labor without any necessity for evidence upon any other items by him claimed. In Badger v. Titcomb, 15 Pick., 409, Wilde, J., remarks for the court: “Wo think it cannot be maintained, that a running account for goods sold and delivered, money loaned, [284] or money had and received, at different times, will constitute an entire demand, unless there is some agreement to that effect, or some usage or course of dealing, from which such an agreement or understanding may be inferred.” In Robinson v. Green, 3 Metc., 159, the plaintiff, who sued for claims both legal and illegal, upon quantum meruit, was allowed to recover for the legal claim which was severable from the other. Other cases are to the same effect. Rundlett v. Weeber, 3 Gray, 263. Holt v. O’Brien, 15 Gray, 311. Bligh v. James, 6 Allen, 570. Warren v. Chapman, 105 Mass., 187. Dunbar v. Johnson, 108 Mass., 519. Hall v. Costello, 48 N. H., 176. We find no error in the charge to the jury. The “business” of selling tobacco without a license, is prohibited by law. But one sale (like this) would not constitute the vender a “dealer.” A plurality of sales would, under ordinary circumstances. A single sale might, if accompanied by evidence of a preparation and readiness by the vender to make other sales. In the case of Harding v. Hagar, 60 Maine, 340, and S. O., 63 Maine, 515, no question was made that the plaintiff was not “a broker; ” and that case differs from this. Here goods on hand and belonging to the plaintiff were sold. There the plaintiff claimed to recover, upon the ground that he had rendered services as a broker. The last instruction requested by the defendants was substantially given in terms adapted to the facts of the case. The proposition of the defendants is a correct one. A person cannot recover for his personal services, portions of which are rendered in an unlawful employment, the contract being an entirety. If the plaintiff contracted with the defendants for his personal services in their employment, a part of which employment was to be in selling liquors unlawfully, he can recover nothing upon such a contract or for services rendered in pursuance of it. But if his contract was to render services only in a legal employment, and he seeks to recover for no other, he is not to be debarred therefrom merely because, during the season of his employment, he occasionally assisted in the sale of liquors as a gratuitous service to his employers, and not as a part of his contracted services for which he seeks compensation. The two things are independent [285] of each other. The judge gave the instruction in a way to allow the jury to comprehend and appreciate this distinction, and it was his duty to do so. The request, as worded, was not of itself sufficient to cover the whole case. Motion and exceptions overruled. Appleton, O. J., Walton, Barrows, Daneorth and Virgin, JJ., concurred.