Erwin & McKelsey v. Stafford

The opinion of the court was delivered by Wheeler, J. The plaintiffs appear to have presented all the ‘items involved in this controversy, both debt and credit, to tho auditor for adjustment, and the defendant appears to have treated the whole of the déal between him and the plaintiffs so presented by them, as being proper to be settled in this action. There is therefore no question to be determined as to whether money paid for intoxicating liquors sold contrary to law, can- be recovered back or not, in this form of action. The plaintiffs sold the goods charged to the defendant at different times, and charged them to him, and he made payments while the account was running, and they credited him with the money paid, and when they brought the whole account before the auditor for adjustment, the charges were to be determined according to their validity to go into the accounting, and to affect the general result accordingly, and the credits were to be treated as payments -upon the running account, and not as payments upon any particular items, or bill, of the account, and were to be computed in favor of the defendant in arriving at the ultimate balance. This makes [394] it unnecessary to decide any question as to the application of payments upon any particular items, as might have been necessary if either of the bills in controversy had stood by itself, to be adjudicated upon as a cause of action without reference to the other bill, or to the fact that it was a part of a running account. The contract of sale of the first bill of liquors, so far as the defendant was concerned, was completed between him and the plaintiffs’ agent in this state. They appear to have had some understanding with their agent that they might repudiate his contracts if they chose, but the defendant did not know this, and,; therefore, cannot bo considered to have made mere propositions for a contract' to the agent to bo accepted or rejected by the plaintiffs in New York. Whether the understanding with the agent so affected his authority that the plaintiffs would not be bound by his contract that was otherwise binding, or not, is not necessary to be determined ; he assumed to, and did, make a contract in their behalf in this state, and they let that contract stand and acted upon it as their contract, and the legality of it stands the same as if they had themselves made it here. No question is made but that the contract, if made in this state, was illegal, so as to defeat the right to recover for the liquors sold by it. The first bill of liquors must, for these reasons, be disallowed in the accounting. No serious question has been, or could well be, mado but that the plaintiffs are entitled to be allowed for the other bill of liquors. The account should stand with the second bill of liquors, $156.25, charged to the defendant, and the payment of $130.15 and that of $150 credited to him. This would leave a balance of $123.90 due the defendant from the plaintiffs to balance book accounts between them. The judgment of the court below was for the defendant for his costs. This judgment was more favorable to the plaintiffs than they were entitled to have it, and, therefore, they are not entitled to have it reversed. The defendant did not except, and as the judgment is not opened on the plaintiffs’ exceptions, he is not entitled to have it corrected in his favor. Judgment affirmed.