« AnteriorContinuar »
of the note, took the burden of proof. To The bill of sale was written out by de sustain the issues on their part, they offered fendant Thomas, and both he and his coevidence showing that the note was given in defendant testified that plaintiff read it be part consideration for the sale and purchase fore he signed it. Plaintiff testified that he of a saloon located in the city of Joplin, Mo., did not read the bill of sale, but admitted including liquors, cigars, etc., good will, and that it was read to him by Thomas before licenses. The question in controversy is he signed it. Plaintiff further testified that whether or not the unexpired state, county, the licenses may have been spoken of in the and city dramshop licenses held by plaintiff trade, but he could not say for certain that at the time of the sale were embraced in the they were mentioned, but was positive there sale, and furnished some part of the con- was nothing said about how the saloon should sideration for the purchase, and, if so, was be run; that he made no inquiry about it, the note void? To show that the licenses and did not know under what license the were embraced in the sale, both defendants business was conducted. The following is testified that the licenses were included in taken from plaintiff's cross-examination: "Q. the bargain, and it was understood they You knew that when you sold this saloon to should go in on the trade, and that defend- Sanderson & Thomas that they were taking ants might conduct the saloon business in your licenses along with the saloon? A. IL the name of the plaintiff, and under his li- they wanted them. Q. You didn't kuow that censes, until the expiration of his state and was part of the contract; that that was put county licenses. In corroboration of this tes- in the contract? A. That was put in the timony, defendants offered and read in evi- contract, I suppose, but I didn't know that dence the following written bill of sale: was in the contract. Q. You knew that “Carthage, Mo., Jan. 8, 1900. For and in con- when Sanderson & Thomas took possession sideration of the sum of eight thousand ($8,- of that saloon, and you closed the contract 000) dollars, paid to me this day, I grant and with them, you knew the licenses were gobargain and sell, to S. H. Sanderson and Geo. ing into the deal? A. If they wanted them. H. Thomas, all of my goods, license, good They were no good to me. I was out of busiwill, etc., to my saloon, known as the Joplin ness, I had no use for them. Q. You knew Hotel Bar, located in the Joplin Hotel, Jop- that, when this saloon was sold to Mr. lin, Mo., and do guarantee the title to the Thomas and Mr. Sanderson, that the licenses same. I also agree to pay all bills of the went in as part of the consideration of this said house up to date, and guarantee that $8,000? A. I didn't consider it so. Q. You Sanderson & Thomas can have the room that knew that was a fact? A. No, sir; not as a the saloon is now in for at least one year at part of the consideration. As I told Mr. $150 per month. Thomas Sawyer.” Defend- Spencer that it might mention the license in ants also offered and read in evidence the the contract, I see it there now. I don't following admissions: “It is admitted that even know whether I read it over or not. up to and at the time of the sale to the de
Q. You went out of that business fendants the plaintiff had a license to keep a on Monday morning, and Mr. Sanderson imdramshop at the saloon known as the Joplin mediately stepped into possession? A. Yes, Hotel Bar; said license being taken out the sir; in fact he had possession Monday. Q. 7th day of November, 1899, to expire on the The business was never closed on account of 6th day of May, 1900. Dramshop license: this deal? A. No, sir. Q. There was not Recites due petition and payment of $466.30 even time for an application for a dramshop license tax, and the giving of bond by Tom license? A. No, sir. Q. You say there was Sawyer, who is 'hereby authorized and per- no agreement or understanding about this mitted to keep a dramshop,' etc., 'for six license. What was your idea—what was months at Joplin, commencing Nov. 7, 1899, your understanding? In this contract you and ending May 6, 1900.' Signed by county say you agree to grant, bargain, and sell to clerk and attested by seal of county court, the defendants. What did you mean by inJasper county. The license of Sanderson cluding the word license,' if you didn't mean next after the expiring of that to Sawyer, as to sell it? A. I don't remember it being referred to, is as follows: Dramshop license: there, Q. It was in there? A. Yes, sir. Q. Recites due petition and payment of $151.50 You think the bill of sale was read over to license tax and the giving of bond by S. H. yor, or you read it, before you signed it? A. Sanderson, who'is hereby authorized and I think so. I don't doubt but what it was permitted to keep a dram shop,' etc., 'for six in there." months at Joplin, commencing seventh of After all the evidence was in, the defendMay and ending sixth November, 1900.' ants moved the court to instruct the jury Signed by county clerk and attested by seal that, under the law and the evidence, plainof county court, Jasper county." Three city tiff could not recover. The court refused to licenses granted plaintiff for each of the so instruct, and instructed the jury to the months of February, March, and April, 1900, effect that, notwithstanding they might find were also offered in evidence. The March the license was embraced in the bill of sale and April licenses were taken out in the as one of the things sold to defendants, it name of plaintiff, but were in fact procured did not vitiate the contract of sale and note, and paid for by defendants.
and, unless they found from the evidence
tat it was agreed between plaintiff and deleadapts that intoxicating liquors were to be sold by defendants under plaintiff's liEcse, they should find for plaintiff. The
y found for plaintiff in the sum of $1,160. After an unsuccessful motion for new trial, defendants appealed.
George Hubbert, for appellants. Galen & 1 E Spencer, for respondent.
BLAND, P. J. (after stating the facts). 1. It is conclusively shown by the bill of sale that the licenses were included in the things sd by plaintiff to the defendants, and defeodants' evidence is that after the sale ity took possession of the saloon and concccted it in the plaintiff's name and under bis licenses until the expiration of the state 47] county license, and that no dramshop weases were issued to them in their names during this period. Their evidence also is tiat at the time the trade was made it was agreed and understood by and between thern and the plaintiff that the saloon stand be run in his name. The plaintiff admitted that the licenses were mentioned and considered in the trade, and confessed, On cross-examination, that he knew the saCoop was not closed for an hour after the sule was made; that he knew the defend. ants were conducting it under his licenses; but denied that there was any agreement that it sbould be so conducted. There may bare been no express agreement that defendants should run the saloon under plaincits licenses, but, if such was not the understanding, why were the licenses discussed in the negotiations for the sale, and why was plaintiff willing for defendants to have the licenses, and why did he embrace them in the bill of sale as one of the things sold? Plaintiff's denial that there was such an agreement is inconsistent with the bill of sale, inconsistent with his other testimony, inconsistent with every other scrap of evidence in the record, and inconsistent with the facts and circumstances characterizing the sale, and what was done by the parties impediately after the bargain was made.
2. Section 2992, Rev. St. 1899, prohibits the transfer or assignment of a dramshop (saloon) license. “Transfer" means "the act by which the owner of a thing delivers it to another person, with the intent of passing the rights which he has in it to the latter." Bouvier's Law Dict. [Rawle's Rev.) 1133. One of the definitions given the term by Webster is “to make over the possession or control of; to pass; to convey as a right from one person to another.” The bill of sale is conclusive evidence of a formal transfer of the license. The transfer of the cense was as complete as the transfer of tbe liquors and other things mentioned in the bill of sale, and was as effectual as if a written assignment had been indorsed on the back thereof, transferring them to the
defendants, signed by the plaintiff; and it was no less a transfer, in fact, because it gave defendants no legal right to sell liquor under them, and was void in law because probibited by statute. For the reason the transfer was void in law, the learned circuit judge was of the opinion that it furnished no part of the consideration for the sale, and therefore did not affect the validity of the sale, and that the note is valid, unless it was shown by the evidence that it was agreed that the liquors were to be sold by defendants under the license which had been transferred to them by the plaintiff. This view of the law finds support in the case of Pierce v. Pierce (Ind. App.) 46 N. E. 490, where there was a bill of sale of saloon goods and fixtures, including license; the transfer of the license being illegal. The contention of the defendant was that the contract was illegal, for the reason the license was transferred along with the saloon goods. The court, at page 483, said: “The answer avers that the 'stock mentioned in the contract consisted of intoxicating liquors then and there for sale,' but it does not a ver that, without the license to sell, they were of no value. It is only the 'other property mentioned in the contract that was without value in the absence of the right to sell under the license. It must be presumed, nothing to the contrary appearing, that the stock of liquors had some value; and, where there is some consideration to support the contract, it will be upheld. Mere inadequacy of consideration is not sufficient to defeat a contract. Sibbitt v. Stryker, 62 Ind. 41. Where a person obtains all the consideration he contracts for, he cannot say there was no consideration. Laboyteaux v. Swigart, 103 Ind. 596, 3 N. E. 373. In the case at bar, the appellant having been bound to know that no benefit would accrue to him under the transfer of the license, and there being some consideration to support the contract, it must be presumed he obtained all the consideration for which he contracted.” See, also, the case of Strahn v. Hamilton, 38 Ind. 57. In the latter case appellant sold appellee a saloon, stock, and fixtures, furniture, etc., and transferred to him his license to sell intoxicating liquors. The transfer of the license was valued at $100. The court held the contract divisible, and allowed a recovery for the purchase price of the sale, etc., less the $100, the consideration for the license. The authority of the Pierce Case is shaken by the case of Sandage v. Studabaker Bros. Mfg. Co., 142 Ind. 148, 41 N. E. 380, 34 L. R. A. 363, 51 Am. St. Rep. 165, where it is held: “There can be no recovery, as between the parties, on a contract made in violation of a statute, the violation of which is a penalty, although the statute does not pronounce the contract void or expressly prohibit the same.” The Pierce Case is certainly out of line with about all the deci
v. .) Atl. ,
common law prevails, and is diametrically Rep. 175, it was held: ^ "IP“a contract is
opposed to an unbroken line of decisions in this state, which hold that a contract prohibited by statute is void, and that no action or suit can be maintained either at law or in equity upon such contracts, even where the statute does not expressly declare them void. Live Stock Ass'n v. L. & C. Co., 138 Mo. 394, 40 S. W. 107; Friend v. Porter, 50 Mo. App. 89-92; Mitchell v. Branham (Mo. App.) 79 S. W. 739; Sedalia Board of Trade v. Brady, 78 Mo. App. 585; Swing v. Cider & Vinegar Co., 77 Mo. App. 391; Bick v. Seal, 45 Mo. App. 475. In Haggerty v. Ice Mfg. & Storage Co., 143 Mo., loc. cit. 247, 248, 44 S. W. 1114, 40 L. R. A. 151, 65 Am. St. Rep. 647, it is said: “The law will not stultify itself by promoting on the one hand what it prohibits on the other.” In Woolfolk v. Duncan, 80 Mo. App., loc. cit. 427, the Kansas City Court of Appeals said: “There is no distinction between a contract that is immoral in nature and tendency, and therefore void as against public policy, and one that is illegal and prohibited by law.” Substantially the same rulings were made in Parsons v. Randolph, 21 Mo. App. 353; Sumner v. Summers, 54 Mo. 340; Shanklin v. McCracken, 140 Mo., loc. cit. 358-360, 41 S. W. 898; Porter v. Gaines, 151 Mo. 560, 52 S. W. 376; Ullman v. St. Louis Fair Ass'n, 167 Mo., loc. cit. 284, 66 S. W. 949, 56 L. R. A. 606. In Patton v. Nicholson, 16 U. S. 204, 4 L. Ed. 371, it was ruled by Chief Justice Marshall, speaking for the court, that where one citizen sells to another citizen of the United States, at war with Great Britain, a British sailing license, for which a note was taken, the note was void, because given for a license under which it was not lawful for an American citizen to sail. In Miller v. Ammon, 145 U. S. 421, 12 Sup. Ot. 884, 36 L. Ed. 759, it is said: “The general rule of law is that a contract made in violation of a statute is void, and that, when a plaintiff cannot establish his cause of action without relying upon an illegal contract, he cannot recover.” In Penn v. Bornman, 102 III. 523, the court said: “All contracts made in violation of an express statutory provision are inoperative and void, and no recovery can be had upon them.” The same doctrine is announced in Ohio, etc., Trust Co. v. Ins. & Trust Co., 53 Am. Dec. (Tenn.) 742; Tatum v. Kelley, 94 Am. Dec. (Ark.) 717; Handy v. St. Paul Globe Pub. Co. (Minn.) 42 N. W. 872, 4 L. R. A. 466, 16 Am. St. Rep. 695. In the latter case it was held that a void contract was not capable of ratification. In Gerlach v. Skinner, 55 Am. Rep. (Kan.) 240, it was held that where the consideration for an assignment and transfer of a thing by a mere order to pay another the money due thereon was in part only contrary to a prohibitory statute against fraudulent assignments and conveyances, it vitiated the whole contract. In
made in part on an illegal consideration, the whole contract is void." The general rule is well stated in 9 Cyc. 566, as follows: "If any part of a single consideration for one or more provisions be illegal, or if there are several considerations for one promise, some of which are legal and others illegal, the promise is wholly void, as it is impossible to say which part or which one of the considerations induced the promise."
The written contract of sale is conclusive that the license was one of the things contracted for, and, the consideration being single and indivisible, it seems to us that, part of the single and inseparable consideration being void, the contract as a whole is void, because opposed to positive law enacted by the Legislature concerning dramshop license. But it is contended that the insertion of the word "license" in the bill of sale was without legal effect, and that the mere knowledge of the plaintiff that defendants intended to use it for an illegal purpose did not vitiate the contract. Aside from felonies and crimes, the majority of the decisions hold that the mere knowledge of the seller or the lender that the purchaser or borrower intends to use the article sold or money borrowed for an illegal purpose does not invalidate the contract. Michael v. Bacon, 49 Mo. 474, 8 Am. Rep. 138; Howell v. Stewart, 54 Mo. 400; Sprague v. Rooney, 82 Mo. 493, 52 Am. Rep. 333; Cockrell V. Thompson, 85 Mo. 510; Prince v. Church, 20 Mo. App. 332; Kerwin & Co. v. Doran, 29 Mo. App. 397; Mitchell v. Branham, 79 S. W. (Mo. App.) 739; Webber v. Donnelly, 33 Mich. 469; Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132; Feineman v. Saclis, 33 Kan. 621, 7 Pac. 222, 52 Am. Rep. 547; Anheuser-Busch Brewing Association v. Mason (Minn.) 46 N. W. 558, 9 L. R. A. 506, 20 Am. St. Rep. 580; McConihe & Co. v. McMann, 27 Vt. 95; Smith v. Godfrey, 28 N. H. 379, 61 Am. Dec. 617; Wallace v. Lark, 32 Am. Rep. 516; Armfield v. Tate, 29 N. C. 258; Bishop v. Honey, 34 Tex. 245; Hines v. Bank (Ga.) 48 S. E. 120. But the doctrine applies to sales of legitimate articles of commerce that may be lawfully sold at the place of sale. It has no application to sales of things prohibited, and when it does apply the courts require but slight aid by the seller, in connection with his knowledge that the purchase is for an unlawful purpose, to defeat the contract. Thus in Gaylord v. Soragen, 32 Vt. 110, 76 Ain. Dec. 154, where the seller marked packages of intoxicating liquors in order to aid the purchaser in quickly identifying and removing them on arrival at destination, where they could not be lawfully sold, before the officers had their suspicions aroused, it was held such aid for the unlawful purpose of the purchaser as to defeat a recovery. In Aiken v. Blaisdell, 41 Vt. 655, and Feineman V. Sachs, supra, similar rulings were made. Discussing the question of aid given
by a seller to a purchaser in order to carry court, conditioned that the applicant shall at at the latter's unlawful purpose, the court, all times keep an orderly house, and that he
Standard Furniture Co. v. Van Alstine, 51 will not sell or give away liquors to minors, LE. A., loc. cit. 891, 22 Wash. 670, 62 Pac. etc. It requires that he pay in advance the
479 Am. St. Rep. 960, said: “If the ven- state and county license tax. The law also se: Las knowledge of the immoral or illegal provides that protests may be filed against Čas D of the vendee, and in any way aids the granting of licenses to keep dramshops. e participates in that design, or if the con- Such protests may be against the dramshop tract of sale is so connected with the illegal itself, or may be against the keeping of the emloral purpose or transaction of the ven- dramshop by the particular applicant. These ce as to be inseparable from it, the vender provisions show that the granting of licenses CADDot recover. Tatum v. Kelley, 25 Ark. is a personal privilege to be awarded by the 1919, 94 Am. Dec. 717; Tracy V. Talmage, 14 county court only on petition of the taxpayX. I. 102, 67 Am. Dec. 132; Hill v. Spear, ing citizens, and only to persons possessing
N. H. 23, 9 Am. Rep. 205; Gaylord v. the statutory qualifications. For these reagoazen, 32 Vt. 110, 76 Am. Dec. 154; Aiken sons a license cannot be transferred by the T. Baisdell, 41 Vt. 665; Schankel v. Moffatt, licensee; to do so would be in contravention
Ill. App. 382; Ralston v. Boady, 20 Ga. of the dramshop act; and we will not stulti49; Webster 7. Munger, 8 Gray, 584; Ad- fy ourselves by sanctioning a contract where233 7. Coulliard, 102 Mass. 167; Graves in the sale and transfer of a dramshop li7. Johnson, 156 Mass. 211, 30 N. E. 818, 15 cense enters and forms a part of an indivisiLR. A. 834, and note to this case in 32 Am. ble consideration, Sł Rep. 450; Beach, Modern Law of Con- The judgment is reversed. Tarts § 457.” In Smith v. Godfrey, 8 Fost. 979, 61 Am. Dec. 617, it was held that if it GOODE, J. (dissenting). The plaintiff ters at all as an ingredient of the con. swore that he did not know the bill of sale Tact between parties that the goods shall be included the licenses, though he was willing Izgally sold, or that the seller shall do some for the defendants to have the licenses if si to assist or facilitate the illegal sale, the they desired them. Plaintiff testified further mgtract will not be enforced. In Tatum v. that there was no arrangement between him Kelley, 25 Ark. 209, it was held that con- and the defendants that the latter were to its which controvert the law are void, and conduct the saloon in his name and under crts will never lend their aid to enforce his licenses, and that he knew nothing of az, and, where the intention of one of the how the business was conducted after he parties is to enable the other to violate the sold. The court left it to the jury to say 17, the contract is void.
whether or not there was an agreement beThe evidence clearly shows that the license tween plaintiff and defendants in regard to entered as an ingredient into the sale, and what licenses the business should be run unese plaintiff's evidence shows that he not der after the sale, and that a verdict should Goly knew that defendants intended to use be returned in plaintiff's favor if they found is license in violation of the law, but that there was no agreement about the matter. be aided them in their unlawful purpose by In other words, the court ruled that the transferring the license to them and turning mere attempt to sell the licenses would not his saloon orer to their possession, to be con- vitiate the entire contract of sale between dorted by them without license. We think, the plaintiff and the defendants, and preda plaintiff's theory of the case, this was vent the former from recovering on the note oficient aid to render the entire contract in suit, unless both parties intended that the void, and that plaintiff should have been non- licenses which plaintiff held should be üilizsited Independent of the statute declaring ed by the defendants in conducting the busia dramsbop license nontransferable, it clear- ness. These two instructions will show the y appears by the dramshop act that such a court's theory of the case: transfer cannot be lawfully made. The act “If you believe from the evidence that grobibits the sale of intoxicating liquors in defendants offered and agreed to pay plainless quantities than three gallons by any tiff $8,000 for his saloon business, and plainperson other than a licensed dramshop keep- tiff accepted, and defendants paid part of ET. It requires the county court to find that such price in cash and part in the note the applicant is a law-abiding, assessed, tax- sued on, and plaintiff executed and delivsaying, male citizen, over 21 years of age, as ered the contract introduced in evidence and a prerequisite to granting the license. It re marked 'Exhibit B,' and delivered possession paires that the applicant shall obtain the con- of such business to defendants, and there sent of the taxpaying citizens in the locality was no agreement between plaintiff and de to be affected by the dramshop that he may fendants as to the manner in which defendkeep the proposed dramshop, and that this ants should do business or under what license consent shall be made known to the county it should be run, then your verdict will be coirt by a petition signed by the taxpaying for plaintiff, even though you further find &tizens. It requires the applicant, as a con- and believe from the evidence that therediton precedent to receiving the license, to after defendants sold liquors at the Joplin gire a bond, to be approved by the county Hotel Bar unlawfully or without license
therefor, or sought to do business under the prepared by him. It occurs to me, however, license issued to plaintiff, and plaintiff knew that, if there could be any question as to such facts."
the intention to include and transfer the “The court instructs the jury that this case dramshop licenses, the acts and conduct of is an action for the balance claimed to be the parties at the time clearly demonstrate due on a certain promissory note given by what that intention was. Plaintiff testifies the defendants, S. H. Sanderson and George that he knew the licenses were going into the H. Thomas, to the plaintiff, Thomas Sawyer. deal "if they [defendants] wanted them"; It is claimed by the defendants that the that he went out of business on Monday consideration of the note sued on was the morning, and defendants “immediately" stepsale and transfer of a certain stock of goods ped into possession, and the business was with which the Joplin Hotel Bar, in the city never closed or suspended for one moment of Joplin, Jasper county, Missouri, was stock- on account of the transfer of ownership. ed, consisting of all goods belonging to plain- | Plaintiff admits that "in fact there was not tiff and used in said saloon, together with even time for an application for a dramshop the license of said Thomas Sawyer used in license" to be made. Plaintiff and defendconnection with the operation of said saloon, ants both being present, defendants went and also the good will, etc., to the said saloon; into possession under the bill of sale, and and the court further instructs that if you continued the business instanter under the should find from the evidence that the con- old licenses; no new licenses being taken sideration of the note sued on, or any part out or applied for. This action of the parthereof, was for the sale and transfer of
ties, then and there at the time, is concluthe saloon or dramshop keeper's license of sive to my mind upon the question of their
it intention, and it is a construction of the con
agreed that intoxicating liquors were to be tract or bill of sale, clearly showing that all
sold under said license, then your finding
parties intended at the time that defendants should be for the defendants."
should continue the business under the old The attempt to transfer the licenses was,
licenses. It is always proper to look at the of course, a failure, but I fail to see how that
conduct of the parties at the 'time, acting necessarily vitiated the entire transaction.
under and in furtherance of the contract, It is argued that the evidence conclusively when we seek to arrive at their intention. shows plaintiff agreed that the defendants
Such conduct is entitled to great, if not conshould conduct the business under the old
trolling, effect. Am. & Eng. Ency. Law (2d licenses, and was a party to an arrangement
Ed.) vol. 17, p. 23; Patterson v. Camden, 25 of that kind. I think that on the evidence
Mo. 13; Jones v. De Lassus, 84 Mo. 511; the question of whether he did or not was
City of St. Louis V. Laclede Gaslight Co., one of fact for the jury, and was properly
155 Mo. 1, 55 S. W. 1003. "I know of no submitted. Presumably the plaintiff was
better mode of ascertaining this meaning not concerned as to whether the defendants
than is shown if all parties acted on a parattempted to continue business under the
ticular meaning." Union Depot Co. v. Ry., old licenses, or procured new ones. What
131 Mo., loc. cit. 305, 31 S. W. 908; Whitehe wanted was to sell his property and busi
head v. Bank, 2 Watts & S. 175. "In a case ness, and, if the vendees chose to include in
of doubt as to the significance of such term, the contract of sale dramshop licenses which
the contemporaneous practice of the parties were nonassignable, it was a matter of indifference to him. In truth, the word “li
to the agreement regarding it (before any
controversy arises) sheds light upon their censes" may have been inserted in the bill
probable meaning and use.” Ellis v. Harof sale to escape paying the note. The
rison, 104 Mo., loc. cit. 279, 16 S. W. 198. purpose of the statute is not to prohibit the sale of a dramshop license if any one wishes
It occurs to me that, whatever may be the to buy it, but to deny any one but the orig- testimony in a matter of this kind after a inal licensee the right to keep a dramshop
controversy arises, it will not justify a court
in losing sight of the construction placed upunder it. Now, if the plaintiff simply sold the licenses, without becoming a party to
on the bill of sale by the parties at the time a compact that defendants should violate the
of its execution, and delivery of possession law by selling whisky under them, or aiding
thereunder. When the parties, by their acts an attempt on their part to do so, he is not
and conduct, deliberately place a constructo be defeated in this action. As the jury
tion upon their contract, which construction found him innocent of such a compact, I
is in consonance with its provisions and in
furtherance of its plain terms, the courts favor an affirmance of the judgment. Pierce v. Pierce (Ind. App.) 46 N. E. 482; Curran v.
are not at liberty to disregard such construcDowns, 3 Mo. App. 468; Mitchell v. Branham,
tion. Jones v. De Lassus, 84 Mo. 515; St. 104 Mo. App. 480, 79 S. W. 739.
Louis Gaslight Co. v. City of St. Louis, 46
Mo. 128. NORTONI, J. I concur with Judge BLAND I agree with BLAND, P. J., in reversing in all that is said in the very able opinion the judgment.