Wadsworth v. Dunnam , 117 Ala. 661 ( 1897 )

BRICKELL, C. J.

When the case was before the court at a former term (Wadsworth v. Dunnam, 98 Ala. 610), the only plea was, that the promissory notes, the foundation of the action, were given on the settlement of an account for goods sold and delivered, containing items of charge for the price of Ginseng Cordial, an intoxicating liquor, the sale of which was prohibited by a local statute of force, at the time, within the locality of the sale. Upon the reversal of the former judgment and the remandment of the cause, the defendant filed several additional pleas, to two of which demurrers were interposed and sustained, and this ruling is the matter of the first and second assignments of error.

The first of the pleas avers, that the notes were given in settlement of an account made by the defendant with the plaintiffs, containing lawful charges, and charges for intoxicating bitters or beverages sold by the plaintiffs to the defendant, in violation of the local statute to which reference has been made. The causes of demurrer specified to the plea were, that the suit was upon notes and not upon an account; and that the defendant by the giving of the notes had waived his right to interpose the plea. The second plea averred, that the notes were given in settlement of an account made by the defendant with the plaintiffs, the account including items of charge for goods, wares and merchandise sold the defendant by plaintiffs on Sunday, and that the sale was not for the advancement of religion, or in execution, or for the performance of some work of charity, or in case of necessity. The cause of demurrer assigned to this plea was, that the sale on Sunday was notin violation of law, or under circumstances which would make it a violation of penal law.

The statute (Code of 1886, § 1749; Code of 1896, §2170), declares that “All contracts made on Sunday, unless for the advancement of religion, or in the execution, or for the performance of some work of- charity, or in case of necessity, are void.” The second plea corresponds to the words of the statute, and affirms the sale on Sunday, negativing the existence of any of the facts or conditions which would withdraw it from the interdiction of the statute. As matter of fact the demurrer was illy taken, for the plea does allege that the sales were in violation of law; and it was unnecessary to aver that they were offensive to the statute, rendering the doing of particular acts on Sunday indictable misdemeanors, (Cr. Code of 1886, § 4045 ; Cr. Code of 1896, §5542). A merchant or shop-keeper making a single sale on Sunday, may not violate that statute, or he may violate it, subjecting himself to its penalties, by the keeping open' store without making any sale. — Dixon v. State, 76 Ala. 89. But without offending the statute first referred to he cannot make a sale-, or any other contract, unless the facts or conditions exist, which withdraw it from the operation of the statute. A sale with closed doors, would be as invalid, as a sale with open doors. — Burns v. Moore, 76 Ala. 339. The demurrer to the plea should have been overruled.

The first plea constituted a full defense to the action, and the demurrers to it ought not to have been sustained. As we will have occasion hereafter to show, if 'any part of the consideration of the notes was illegal — if it grew out of the doing any act, or was part of any transaction prohibited by law — the notes are void in toto.

' The proposal that the jury on-their retirement should take with them bottles of the kind of cordial sold defendant by the plaintiffs, “to be smelled, or drank, or tasted,” as the jury, or any number of them chose, was properly overruled. The purpose was that the jurors, if indulging the opportunity afforded them, from personal experience, should determine the controverted fact whether the cordial was intoxicating. Laying aside all other objections, it is enough to say, if the cordial was intoxicating, as insisted by the defendant, it was the duty of the court to prohibit, not to license its introduction into the jury room.' And if it had been introduced, and by its use the jurors had acquired knowledge, of formed any opinion as to its properties or qualities, the one juror could not have communicated his knowledge or opinion to another. “A juror on trial who has knowledge of any material facts, must give notice, so that he can be sworn, examined and cross-examined. He can not be permitted to give evidence to his fellow jurors without being so sworn.” — 1 Whart. Ev., § 602. The books abound with instances in which new trials have been granted, because jurors, forgetting that they were not witnesses, have in their retirement communicated their knowledge of facts' material to the issue on which a verdict vTas to be rendered.

The question propounded to Dr. Dubose on his re-examination " was not subject to the objection taken, and' the court erred in sustaining it. The matter of the cross-examination was directed to an inquiry into the ingredients of which Ginseng Cordial, was compounded, and of their medicinal properties or qualities, new matter not involved in the examination in chief. Generally, the purpose of a re-examination is to elicit fuller evidence in respect to the matters, the subject of the cross-examination, or it may be explanatory, or contradictory of the testimony given on cross-examination. The general principle is, that a party is not permitted to impeach the general reputation of a witness he has introduced and examined, nor can he by general evidence assail his credibility. — 1 Green. Ev., § 442. But it is his right by any competent evidence to prove any material fact, though it may be directly contradictory of the testimony of the witness he has introduced and examined. — 1 Green. Ev., § 446. Until the re-examination, the defendant had not the opportunity to examine the witness as to the ingredients of which the cordial was compounded, and the presence or absence of medicinal properties in them. It can not be that he had not the right to propound all questions to the witness, which he could have propounded in the examination in chief. If the tendency of tlie evidence .was the contradiction of the witness, thereby casting upon him more or less of discredit, it had an equal tendency to show that he may have erred in his judgment — may have fallen into an in-no'cent mistake. In whatever aspect the evidence may be viewed, it was admissible.— White v. State, 87 Ala. 24; Griffith v. State, 90 Ala. 583.

The doctrine of the common law, as it is laid down in the text books, and supported by numerous adjudications, is, that, “if any part of the entire consideration for a promise, or any part of an entire promise is illegal, whether by statute or at common law, the whole contract is void. Indeed, the courts go far in refusing to found any rights upon wrong doing.” — 1 Parsons on Contracts, 456 ; 1 Parsons, Notes & Bills, 217; 1 Dan. Neg. Ins., § 195 ; Story, Prom. Notes, § 189 ; Bishop on Contracts, § 471; Clark on Contracts, 472; 1 Smith Lead. Cases (8th ed.) 736; Carrington v. Caller, 2 Stew. 175; Pettit v. Pettit, 32 Ala. 308; Wynne v. Whisenant, 37 Ala. 46; Patton v. Gilmer, 42 Ala. 548; Cotten v. McKenzie, 57 Miss. 418 ; Widoe v. Webb, 20 Ohio St. 431; Deering v. Chapman, 22 Me. 488 ; Kidder v. Blake, 45 N. H. 530. There has not, perhaps, been more frequent application of the doctrine than to promissory notes, or other evidences of debt, taken in settlement of accounts for goods, wares, or merchandise, items of which were for goods sold on Sunday, or for spirituous liquors sold in violation of law. The accounts may have contained items having no connection with the illegal sales ; items' .for goods not sold on Sunday, or items for the sales of goods not prohibited. When all are blended, and a promissory note is taken for the whole, the note is en-tire and indivisible,, and upon it there can be no recovery. — Cotten v. McKenzie, supra ; Widoe v. Webb, supra ; Deering v. Chapman, supra ; Kidder v. Blake, supra.

The complaint declares on eight several promissory notes and the uncontrov.erted fact is, that these notes were given in settlement of an account for goods and merchandise sold by the plaintiffs to the defendant. And there was evidence tending to show that some of the sales were made on Sunday, and some were of Ginseng Cordial, an intoxicating drink, in violation of a law prevailing in the locality of sale, rendering such sale an indictable offense. If there were items of the account closed by the notes, .not tainted with illegality — unconnected with the illegal sale — the plaintiffs could havé maintained an action on the original contracts of sale, though the notes had been taken. . The notes, if tainted with illegality, are utterly void; incapable of' discharging the just indebtedness of the defendant. But the plaintiffs chose to declare on the notes alone, not joining a count for goods sold. The notes are prima facie evidence of indebtedness, and upon the defendant was cast the burden of showing to what extent the consideration was illegal, “and upon the court the task of separating the sound from the unsound.” Adopting the language of the court in Widoe v. Webb, supra: “If this effort should result in the plaintiffs losing what was justly due them, we canbut repeat what was said in a similar case. It is but a reasonable punishment for including with his just due that which he had not the right to take.” In the view we have taken, the court below erred in the refusal of the first, third and sixth instructions requested by the defendant; and in the second instruction given on request of plaintiffs.

The first instruction given at the instance of the plaintiffs is in conflict with the views expressed, when, this case was here at at'former term ( Wadsworth v. Dunnam, 98 Ala. 610), and should have been”refused. The instruction is, in fact, but a repetition of the fourth instruction given at the instance of the plaintiffs on the former trial, and which was pronounced erroneous. We will not enter into a discussion of the ingredients or properties- of “intoxicating bitters or beverages,” the words employed in the prohibitory statute. We can add nothing upon this point to what was said and decided when this case was before the court formerly; and to what was said and decided in the preceding cases. — Carson v. State, 69 Ala. 236 ; Carl v. State, 87 Ala. 17, and authorities cited.

The third instruction given at the instance of the plaintiffs was erroneous, in assuming as a fact, that to produce intoxication, other ingredients were added to the cordial by'the defendant. The bill of exceptions purports' to state all the evidence, and 1 is without any evidence having a tendency to show such addition. Whether the error of the instruction should not have been cured by a request from the defendant for an explanatory instruction, we need.not consider ; on another trial, it is not to' be apprehended a like instruction will be given. The burden rested on the defendant, by evidence-, to produce on the minds of the. jury a reasonable conviction of the truth of his pleas, and it would have aided them but little, if it would not have confused them, to have said that the defendant was not required to prove the truth of the pleas by a preponderance of the evidence. — Hopper v. Ashley, 15 Ala. 457; Vandeventer v. Ford, 60 Ala. 610.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.