Webber v. Howe

Cooley, Ch. J: The circuit judge charged the jury that if the order for the liquors, though taken in Michigan, was filled in Ohio, and the liquors were shipped in Ohio, and the defendant received them in Detroit and paid the freight, then the plaintiff would be entitled to recover. This instruction must assume that the contract was an Ohio contract, being completed by the acceptance and filling of the order in that state. Had the order been sent from this state to dealers in Ohio and filled there, or had an agent of tho Ohio parties who had no authority to agree upon sales taken the order in this state and transmitted it to his principals, who accepted and filled it, we think the instruction might have been sustained.—McIntyre v. Parks, 3 Met., 207; Orcutt v. Nelson, 1 Gray, 536; Garland v. Lane, 46 N. H., 245; Kling v. Fries, 33 Mich., 275. But the order was taken here by one of the plaintiffs in person, and - the acceptance, as well as the giving of it, took place in this state. There are some cases which have decided that even under such circumstances the sale is not completed until the property is actually separated from the stock in the store and delivered to the carrier in pursuance of the order.—Sortwett v. Hughes, 1 Curt. C. C., 244; Abberger v. Marrin, 102 Mass., 70; Dolan v. Green, 110 Mass., 322. But these cases are not important here, since whether the contract of sale was executory or actually completed by delivery, it was equally invalid uiider our statute. The statute not only avoided all sales, but “all contracts or agreements relating thereto.” — Comp. L., § 2137. It was suggested on the argument that, as the agreement was for the purchase of goods to the amount of more than fifty dollars, it was void under the statute of frauds for [155] want of writing, and consequently did not take effect as an agreement until acted upon by the delivery of the goods to. a carrier in Ohio. But if we assume the original invalidity of the agreement in this state oh this ground, it cannot, we think, help the vendors. If void originally it would not. become binding upon tire purchaser until he should do something in ratification of it, and it does not appear that anything further was done by him until the liquors were received in this state. His void order could not make any carrier to whom the vendors should see fit to deliver the-goods his agent. The ease must therefore stand either upon the original order or upon the reception of the goods-at Detroit under it; and in either case the contract must, be regarded as a Michigan contract.—Hanson v. Armitage, 5 B. & Ald., 557; Acebal v. Levy, 10 Bing., 376; Morton v. Tibbett, 15 Ad. & El., 428; Bushell v. Wheeler, 15 Q. B., 442; Norman v. Phillips, 14 M. & W., 277; Farina v. Home, 16 M. & W., 119; Outwater v. Dodge, 6 Wend., 400; Lloyd v. Wright, 25 Ga., 215; Spencer v. Hale, 30 Vt., 314; O’Niell v. N. Y. C. & H. R. R. Co., 68 N. Y., 138; Shepherd v. Pressey, 32 N. H., 49; Hart v. Bush, El., Bl. & El., 492; Curry v. Anderson, 2 El. & El., 592. Had this suit, therefore, been brought-while the statute which forbade such contracts remained in force, there could be no question but the plaintiffs must fail. That statute, however, has been repealed, and the plaintiffs rely upon the repeal as taking away all impediment to-a recovery. It was, it is said, in the nature of a penal statute, and when it was repealed, all penal consequences, including the inhibition to maintain suits for liquors sold, fell with it. —Engle v. Shurts, 1 Mich., 150; Welch v. Wadsworth, 30 Conn., 149; Confiscation Cases, 7 Wall., 454. The prohibitory liquor law expressly made all contracts, the consideration for which in whole or in part was the sale of liquors utterly null and void, except in certain specified cases, of which this was not one. It also declared [156] ¡all moneys and securities received on such, sales to be re■ceivod without consideration, and authorized them to be recovered back.—Comp. L. 1871, ch. 69. While this was in force, the sale in question was made. The law was repealed in 1875, “saving all actions pending and all causes -of action which have accrued” at the time the repealing ¡act took effect.—Public Laws 1875, p. 279, 280. It has often been decided that a contract invalid at the fime it was-made for want of compliance with some statutory provision, -or because of some statutory prohibition, might be validated by legislation afterwards.—Lewis v. McElvain, 16 Ohio, 347; Savings Bank v. Allen, 28 Conn., 97; Andrews v. Russell, 7 Blackf., 474; Parmelee v. Lawrence, 48 Ill., 331; Dulany’s Lessee v. Tilghman, 6 G. & J., 461; Journeay v. Gibson, 56 Penn. St., 57; Carpenter v. Pennsylvania, 17 How., 456; Dentzel v. Waldie, 30 Cal., 138; Estate of Sticknoth, 7 Nev., 227; Gibson v. Hibbard, 13 Mich., 215. But this case is not like those referred to. Here the statute has not undertaken to validate the void agreement, but has left it as it was, “utterly ■null and void.” A suit cannot be brought upon it, because no contract ever existed. The repealing law, instead of indicating a purpose to validate such agreements, indicates ■the contrary purpose. It only remains to consider a claim made by defendant to recover by way of set-off for moneys previously paid by him for liquors, and which, according to the law then in ■force, were paid without consideration. We have no doubt ■of his right to set off these moneys if he proved the payment. This he claims to have shown by proving the payment by him of orders drawn by the plaintiffs in favor of third persons. We cannot see why this proof is not complete. Plaintiffs relied upon Buckley v. Saxe, 10 Mich., 328, but that case was quite different. There to prove ■that he had paid money on a bet, the plaintiff produced a note he had given for the sum bet; and this alone, it was held, did not prove the payment of money on the bet. [157] Here the payment is proved, and as it was made on the drafts drawn by the plaintiffs on .the defendant, it was in law a payment to the plaintiffs themselves. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.