Gaylord v. Soragen

Aldis, J. I. We think the decision of the court of appeals, reported in 3 Kernan 378, establishes the unconstitutionality of the 16th section of the act of the State of New York passed in 1855, for the prevention of intemperance. That section is obnoxious to the objections which were sufficient to induce the court to declare the act in other sections unconstitutional. The contract between the plaintiff and the defendant was, therefore, valid by the laws of New York. II. Mere knowledge by the vendor of goods selling them in a foreign State, that the vendee intends to use them in violation of the laws of this State, is not sufficient to invalidate the contract, when it is sought to be enforced in our courts. Our own courts have recognized this rule; McConihe v. McMann, 27 Vt. 95. And it is now generally adopted in this country and in England, though the contrary doctrine has received the support of some eminent judges and jurists. III. Although mere knowledge of the unlawful intent of the vendee by the vendor will not bar him from enforcing his contract to recover for the goods in our courts, yet it is well settled that if he in any way aid the vendee in his unlawful design to yiqlate our laws, such participation in the illegal enterprise will [113] disqualify him from maintaining an action on his contract in this State. The participation by the vendor must be active to some extent; he must do something, though indirectly, in furtherance of the vendees design to violate our laws. Mere omission to act is not enough, but positive acts in aid of the unlawful purpose, however slight, are sufficient. In the case at bar, the defendant bought the liquors of the plaintiff at Plattsburgh, the plaintiff knowing that the defendant intended to bring them to Burlington and sell them ,in violation of our laws. It was understood by both parties that if the casks were marked with the defendant’s name they would be in danger of being seized by our officers as soon as they arrived on this side of the lake. To prevent seizure by our officers the plaintiff, at the defendant’s request, omitted to mark them with the defendant’s name, and did mark them with a private mark, known to the defendant — a diamond with the letter S in it. Both parties understood that the object of so marking the casks was to enable the defendant with greater facility to save them from seizure. Now this omission to mark” them with the defendant’s name, standing alone, would not, in our judgment, be an act of participation sufficient to bar the plaintiff. But the plaintiff went further, and the act done, though slight, is significant. He so marked them that the defendant might instantly know his casks on their arrival, and so be enabled to remove them before the officers of the State should have their suspicions awakened. This act, though so slight, gave the defendant an advantage over the officers and aided him in escaping from their vigilance. This was the object the plaintiff and the defendant intended to accomplish by having them so marked. We think the act done tended to secure their design. If the plaintiff had put some false mark on the casks for the purpose of disguising their true character and of deceiving the public authorities, no one could doubt for a moment that that would be active participation in the unlawful purpose. The marks actually used tended to the same object, though not used for the purpose of deceiving the officers, but only of enabling the defendant with facility to es'cape their observation. As the evidence tended to prove- that the plaintiff, by his acts, [114] done in connection with tbe sale and delivery of the liquor, aided the defendant to escape the vigilance of the officers and so to have and to sell the liquors in violation of our laws, it should have been admitted. The refusal to allow it to go to the jury was error. Judgment reversed.