Backman v. Wright

The opinion of court was delivered by Redfield, Ch. J. I. The first question made in this case is in regard to the plaintiff’s right to recover for the liquor, the sale of which was negotiated through the plaintiff’s agent, Drew. Drew was the plaintiff’s agent for the purpose of soliciting sales in this state. His agency seems to have been general upon the subject, and not limited to such persons as had license to sell; and he seems perfectly ready to contract or forward orders from persons having no license. Notice to the agent is notice to the principal in that particular transaction. And when the agency seems to be general, and the agent assumes to sell to persons who have no power or right to buy or hold liquors for that purpose, it must be considered that his agency extended to soliciting sales of that character ; while if the principal ratifies the act of the agent, by completing the sale and claiming the benefit of it, he takes it, with all its incidents of illegality and notice of that fact. The acts of the agent, then becoming .those of the plaintiff, he is implicated in whatever is done within the state, as if he had done it himself. And if one participates in an illegal sale, any portion of which is transacted within the state, he becomes through such participation a partaker in the illegality, and the law will not aid him in the recovery of the stipulated price. But if the vendor does nothing, either by himself or his agent, to forward the illegal contract within the state, he may recover, notwithstanding he may know the illegal purpose to which the article is to be put in another jurisdiction. But if he transact any portion of the contract within the state, he cannot secure himself and evade our law by going into a foreign jurisdiction to consummate the sale. This is virtually decided, and the reasons given more at length than would be proper to repeat here, in Territt v. Bartlett, 21 Vt. 184. The authorities are there cited in detail, and show most conclusively that such has been the rule of the English law upon this subject for nearly a century. [190] The rule was applied to a case in Chittenden county, at the last term of this court, where the facts .were almost identical with the present. II. In regard to the charge for two barrels of rum, ordered by the defendant himself, through the mail, and delivered in New York, the plaintiff is undoubtedly entitled to recover, unless the payments made subsequent to that time, and amounting to more than sufficient to pay this charge, are to be applied in payment of this legal portion of the claim, in preference to the. illegal portion. And neither party having directed or made any specific application of the payments before suit, the law will now make such application as it it deems most reasonable and just. And it seems to be perfectly well settled, that in a case like the present the payments are first to be applied to the extinguishment of that portion of the account which constitutes a legal debt on the part of the defendant. This identical question was decided by this court, in Wood v. Barney, 2 Vt. 369, in an elaborate opinion by Prentiss, J.. where he says: “It was said by Abbott, Ch. J., in the case of Wright v. Laing, 3 B. & C. 165, that when a person has two demands, one recognized by law, the other arising on a matter forbidden by law, and the debtor makes a payment which is not specifically appropriated by either party at the time of the payment, the law will after-wards appropriate it to the demand which it acknowledges, and not to the demand which it prohibits.” The same rule is again distinctly recognized in Bancroft v. Dumas, 21 Vt. 456. It seems impossible to distinguish this case from either of those. The judgment is therefore affirmed.