Buck v. Albee

[190] The opinion of the court was delivered by Isham, J. The fact is found in this case, that one Michael Kirk was the owner of a quantity of spiritous liquor, and that on the second day of February, 1850, he transferred the same to the defendant to be sold. Its avails were to be applied to pay the debt due from Mr. Kirk to Mr. Albee, then the claim due Messrs. Barlow & Keyes, and the surplus was to be held subject to the order of Mr. Kirk. The contract, under which the plaintiff claims the money for which this suit is brought, was made the next day after the transfer of the liquor to the defendant, and while it was in his hands. The plaintiff and defendant, Mr. Kirk and Mr. Barlow were present and parties to that arrangement; in which it was agreed? that the defendant should proceed and sell the liquor, and apply the avails in payment of the debts before mentioned, and the balance was to be paid to the plaintiff on the claim for which he was liable as surety for Mr. Kirk. This arrangement gave the plaintiff an interest in the liquor before its sale, as much so, as that of the other parties to that contract. The liquor was afterwards sold under that arrangement, and the money was received by the defendant. The question arises, whether this was a contract of that illegal character, which will prevent the plaintiff from recovering the money received by the defendant on that sale. The sale of the liquor by the defendant was made without license ; and by the act of 1846, which was in force at that time, the sale was obviously illegal and void. If a suit had been brought against the purchaser of the liquor for the price, it could not have been sustained ; for the law will not lend its aid to enforce such a contract, but will leave the parties in the situation in which they have placed themselves. In 2 Kent’s Com. 588, the rule is given, “ That if the contract grows immediately out of, or is connected “ with an illegal act, a court of justice will not enforce it. But if “ it be unconnected with the illegal act, and founded on a new con- “ sideration, it may be enforced.” In the application of this rule it may be observed, that in all cases, where it is necessary to prove that illegal contract and sale, to enable the plaintiff to recover, then the contract is so connected with the illegal act that a recovery cannot be had. But if the right can be established without such proof, the plaintiff may recover; for the claim is unconnect [191] ed with the sale, and rests on a new consideration. In Story on Oont. 146, it is said, “ That if an act, in violation of either stat- ■“ ute or common law, be already committed, and a subsequent agree- “ ment be entered into, which though founded thereupon, constitu- “ ted no part of the original inducement, or consideration therefor, “ such an agreement is valid.” If the money arising from the sale of this liquor had been received by the defendant, and the plaintiff had afterwards obtained an order for the payment of the same to him, and the defendant had agreed-to pay it, the action could be sustained; as the plaintiff in no sense, would be a party to the illegal contract of sale. The knowledge that the money in the defendant’s hands arose from an illegal transaction, would make no difference; for, in such case, it would be sufficient to prove the money in his hands, and the agreement to pay the same to the plaintiff, without showing the contract or arrangement under which the defendant received it. It is said in Story on Cont. 146-7, “ That this rule, and the distinction which is made, will be found “ to form the principle which lies at the root of many apparent “ contradictory cases, and to offer the best solution to the various “and opposing decisions.” Armstrong v. Tober, 11 Wheat. 258. It is expressly stated in the case, that before the 'liquor was sold, and while it was in the defendant’s hands, the plaintiff and the other parties in interest agreed, that the defendant should proceed and sell the liquor. When the defendant was selling it, he was not only acting for his own interest, but for the plaintiff, and the other party also. The plaintiff as much directed the sale, as the others, who were equally interested with him, and was as directly concerned in the violation of the statute, as.was the defendant himself. To sustain this action, it will be necessary for the plaintiff to prove the contract under which, the liquor came into the defendant’s hands; the mutual arrangement for the sale of it; the illegal sale itself; and the receipt of the money by the defendant It is through that contract and sale, that the plaintiff derives his title. If the plaintiff is allowed to recover, it is not upon a mere receipt of the money by the defendant, and a subsequent agreement to pay the same to the plaintiff; for, no such subsequent agreement has been made; but it must rest upon a direct adjudication of the court, sustaining that illegal contract and sale. The court can no more enforce that contract, or see to the distribution of the proceeds of [192] that sale between, these parties, than they can enforce any illegal contract, or see to the distribution of money between parties, which has arisen from any other illegal adventure. The remarks of Justice Baldwin, in the case of Batte v. Coleman, 4 Peters 184, are appropriate and emphatic. “If either has sustained a loss by “ the bad faith of the particeps criminis, it is but a just infliction “ for premeditated fraud. He must not expect, that a judicial tri- “ bunal will exert its powers, to shift the loss from one to another, “ or to equalize the benefits or burthens, which may have resulted “ from the violation of every principle of morals, and of law.” The charge of the court, therefore, we think was incorrect in saying “ that if the defendant agreed with the plaintiff and Mr. Kirk to sell the liquor, and pay the balance to the plaintiff, after paying his own claims and the debt due to Barlow & Keyes, that the plaintiff would be entitled to recover, although the defendant sold the liquor in violation of law, and without a license, and although it was expected by the plaintiff and Mr. Kirk, that he would so sell the same, when they entered into the agreement with him.” This charge will enable the plaintiff to recover, and reap the benefit of a sale made by his procurement and directions, and in direct yiolation of the statute. The law will sustain no such action. The judgment must be reversed, and the case remanded.