Kennedy v. Stemming

Person, J. (after stating the facts). The contract was illegal and void. A license to sell intoxicating liquors is personal and cannot be transferred to another. Koppitz-Melchers Brewing Co. v. Behm, 130 Mich. 649 (90 N. W. 676); Walhier v. Weber, 142 Mich. 322 (105 N. W. 772); Dierkes v. Wideman, 143 Mich. 181 (106 N. W. 735). It is shown on the face of the contract that all of the parties had a criminal prosecution in mind, and were aiming to protect Stimming if he should be arrested for making sales without a proper license. Counsel for plaintiff are mistaken in their claim that the garnishee defendant occupied a position analogous to that of a stakeholder. It received the $1,500 paid by Stimming, not simply to indemnify him for breaking the law, but to apply, so far as not used for that purpose, upon its own claim against Ehrmann. It was a payment by Stimming of so much of the purchase price of the property sold to him by Ehrmann, and was, in effect, a payment to Ehrmann. It went into the garnishee’s hands, not as the money of Stimming, but as the money of Ehrmann. The postponement of the application of the money upon Ehrmann’s indebtedness was a matter between Ehrmann and the garnishee, in which Stimming had no interest. And the purpose of the postponement was to ascertain how much might remain to be applied after Stimming should have been indemnified. Whatever may be the rule as to the right of a party to reclaim his property while the illegal contract remains executory, that rule can have no application to this case. This contract had been executed in most, [606] if not all, respects, before any claim was made for a return of the money in the hands of the garnishee defendant. A part of the purchase price of the property had been paid in cash and notes given for the balance, the property had been delivered to Stimming, and the control of the business had been in his hands for several months. Nor is this a case where the money can be recovered without showing the illegality of the contract. Under these circumstances the law leaves the parties where they have placed themselves. In addition to the cases above cited, see Bryant v. Wilcox, 137 Mich. 669 (100 N. W. 913); Benson v. Bawden, 149 Mich. 584 (113 N. W. 20, 13 L. R. A. [N. S.] 721); Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697); McNair v. Parr, 177 Mich. 327 (143 N. W. 42). Inasmuch as it' has been tacitly or expressly conceded by the parties that plaintiff cannot maintain this action against the brewing company if Stimming could not have maintained one for the money which he paid over to it, and as there has been no argument on the point, it will not be considered in this opinion. The refusal of the court to find the facts in accordance with plaintiff's seventh request was not error; and if the facts had been found as requested the disposition of the case could not have been different. The judgment is affirmed. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.