Hollenberg Music Co. v. Berry , 85 Ark. 9 ( 1907 )

Wood, J.,

(after stating the facts). The only question here is whether mere knowledge on the part of the seller that the buyer intends to put the thing sold to an unlawul use, or, as in this case, to use it in the same place where an unlawful or immoral business is carried on, avoids the contract on grounds of public pplicy.

In the absence of proof that the piano was used or to be used by the terms of the contract in connection with the illegal business of keeping the bawdy house, or that the use of the piano by appellee was inseparable from the business, which fact appellant knew, or that appellant knowingly was to derive some benefit from the use of the piano in the bawdy house, the instruction was erroneous.

The rule supported by the weight of authority and approved by this court is “that, though .the contract is entered into by one of the parties for the furtherance of an illegal purpose, the contract will not be rendered illegal as to the other party, though he had knowledge of such illegal purpose, provided he does nothing in furtherance thereof.” O’Bryan v. Fitzpatrick, 48 Ark. 387; Parsons Oil Co. v. Boyett, 44 Ark. 230. See also McMurtry v. Ramsey, 25 Ark. 350; Ruddell v. Landers, 25 Ark. 238; Tatum v. Kelley, 25 Ark. 209. See Tracy v. Talmage, 67 Am. Dec. 132; Hill v. Spear, 9 Am. Rep. 205; and Anheuser Brewing Ass’n v. Mason, 9 L. R. A. 506.

It follows that the court erred. The judgment is therefore reversed, and the cause is remanded for new trial.