Wirth v. Roche

Haskell, J. Assumpsit by a liquor dealer in Boston to recover of defendant the price of sundry bottles sold filled with beer. The defendant at sundry times ordered bottled beer from plaintiff to be shipped to him in Maine, there intended for unlawful sale as the plaintiff well knew. The plaintiff contends that although he cannot recover the price of the beer, he may recover the price of the bottles. If the beer and bottles containing it were sold together, the plaintiff cannot recover the price of either one [388] by reason R. S., c.'27, § 56. That provides, “No action sball be maintained upon any claim or demand, promissory note, or other security contracted or given for intoxicating liquors sold in violation of this chapter, or for any such liquors purchased out of the state with intention to sell the same or any part thereof in violation thereof; but this section shall not extend to negotiable paper in the hands of a holder for valuable consideration and without notice of the illegality of the contract.” The evidence shows that if the bottles were sold at all, they were sold with their contents. The thing sold was an entirety, and methods of book-keeping cannot change its nature. Where the contract of sale includes both legal and illegal elements neither can be recovered. In Ladd v. Dillingham, 34 Maine, 316, the sale of a stock of goods containing intoxicating liquors was.held invalid. Where intoxicating liquors and vessels are illegally sold, the contract is indivisible, and the price of the vessels cannot be recovered. Holt v. O'Brien, 15 Gray, 311; Bligh v. James, 6 Allen, 570. The evidence shows but one contract applying to each order, so that either the bottles were included in the sale, or they were not. If included, the contract cannot be enforced. If not, then there .is no evidence of the sale of the bottles at all, and they still remain the property of defendant, and their price cannot be recovered in assumpsit unless the defendant has reduced them to cash, or its equivalent, and it does not appear that he has. His refusal to redeliver them would be a conversion, a tort, that cannot be waived so as to bring assumpsit unless they have been turned into money or its equivalent. Fletcher v. Harmon, 78 Maine, 465; Androscoggin Co. v. Metcalf, 65 Maine, 40, and cases cited; Quimby v. Lowell, 89 Maine, 547. Where the evidence relates to a single transaction in the sale of goods and shows an express contract that is invalid, the law does not imply one. Wood v. Finson, 89 Maine, 459; Billings v. Mason, 80 Maine, 496. The pro forma rulings of the presiding justice, in substance, that when the contents of the bottles shall have been removed from them, their sale became valid and might be enforced was error; [389] for the contract of sale was an entirety and indivisible, including both bottles and contents, and therefore void. Exceptions sustained.