Town of Topsham v. Rogers

The opinion of .the court was delivered by Pierpoint, C. J. The principal objection made to tire report of the. auditors is that they allowed in the plaintiff’s account certain charge’s for.intoxicating liquors purchased by the defendant in the name bf the tow’h, and afterwards sold by him as the agent of the town. It appears that in 1865 the defendant was appointed, by the county commissioner, all agent for the sale of' intoxicating liquors in the. town of Topsham, under the statute. After'he was so appointed, the selectmen of the town entered into a contract with him, in which it was agreed, among other things, that the' town, .through its selectmen, should furnish the liquor for him to sell, ■and also ‘ fix the price at which it was to be sold, and the manner off transacting the business. ,. It is not'claimed that there was anything in the terms of the .contract that 'was. not in strict conformity to' the statute. The proceeds of the sales were to bd paid into the town treasury, and 'the defendant was to receive a specified compensation for doing the business. ' The officers of the town supplied the defendant with liquor, from time to time, but during the year the defendant himself pur [193] chased liquor in the name of the town, paid for the same with the money in his hands, and sold the same as such agent; this he did without the knowledge of the officers of the town, and it is for the proceeds of this liquor, so purchased and sold, that the said charges are made. The counsel for the defendant now claims that these charges should be disallowed for the reason that the statute prohibits such agents purchasing liquor on the credit of the town, and that the said purchases being made in violation of the law, the town cannot now make him chargeable with the proceeds of the sales. Sec. 4 of chap. 94 of the General Statutes, relating to traffic in intoxicating drinks, provides that the commissioner of any county may appoint some suitable person as the agent of any town or city within the county, to purchase, at the expense and credit of the town or city, and sell therein, intoxicating liquor, etc., and the money received therefor is to be paid into the treasuries of such towns or cities. It also provides that the towns may withhold their consent to the use of their credit, until such agent gives a bond, etc., for their security. Under this statute all the liquor, that was to be purchased and sold in accordance with its provisions, was to be purchased by the agent on the credit of the towns. Under this statute towns were liable to be, and semetimes were, involved in a large amount of indebtedness, without receiving a corresponding amount of money, into their treasuries. To obviate this deficiency, and perhaps some others, the act of 1863 was passed, declaring that it shall not be lawful for any town or city agent, appointed in pursuance of sec. 4, to purchase any intoxicating liquors at the expense ox-credit of the town or city for which such agent is appointed, and imposing upon the officers of such town ox- city the duty of furnishing the liquor to such agents for sale. Under this statute the defendant had no lawful authority to purchase the liquors in question on the credit of the town, and the town was under no obligation to pay for it if it saw fit to avai itself of the right to repudiate the transaction; but the officers had an undoubted right to adopt and ratify the transaction after the acts were done. They might have made him their special [194] agent to buy the liquors for them and in the name of the town, and then there would have been no violation of the act of 1868. The purchasing would then have been the same as if done by the officers of the town in person. And especially should they have the right to ratify when, as in the present case, the liquor was bought in their name and paid for with their money. To hold otherwise would enable the agent to perpetrate a gross fraud upon the town, as is in fact attempted in this case. The, acts of the officers of the town have been in strict accordance with the requirements of the statute. They were ignorant of any wrongful act on the part of the defendant until after their money had been invested in the liquors, and the liquors sold by the defendant as the agent for that purpose, and the defendant is now seeking to avail himself of his own wrongful act, to cheat the town out of what is justly its due. The defendant also contends that, as it appears from the report of the auditors, that a considerable portion of the liquor so furnished by the town was sold by the defendant in violation of the law and of his duty as agent, therefore the town cannot legally charge him with the proceeds of such illegal sales ; that by so doing the town becomes a party to the wrong. We cannot so regard it; the town has been in no fault in the matter ; the officers of the town were ignorant of the illegal acts of the defendant. The proceeds of the sale were the property of the town, and'the defendant cannot be permitted to set up his own violations of the law to shield himself from the responsibility to pay over to the town the proceeds of the sale of the property. The maxim in fari delicto has no application here. To apply it to a case like the present would be a perversion of the rule, and a violation of the principles of justice and sound policy. The judgment of the county court is affirmed.