Blandi v. Pellegrini , 1915 Pa. Super. LEXIS 242 ( 1915 )

Opinion by

Kephart, J.,

As a general proposition, knowledge by the vendor of goods sold in another state that the vendee intends to use them in violation of the laws of this State, is not sufficient to invalidate the contract, when sought to be enforced here, unless the vendor does something in aid of the illegal design of the vendee, and if he does, he cannot recover for the price of the goods sold. If it appear from the plaintiff’s evidence that the vendor aided in the prosecution of the illegal design, it is the duty of the court to withdraw from the jury any consideration of the contract and direct a compulsory non-suit.

Two grounds of illegality of contract are urged: that the vendor aided and participated in an unlawful act, and, that the place of sale to the defendant occurred in Allegheny County, the plaintiff having no license to sell liquors in this county.

As to the first proposition, the plaintiff denied all knowledge of an illegal use and' asserted that the goods were marked and shipped, in the manner hereinafter mentioned, at the request and for the convenience of the defendant. The instructions to the storage company do not appear in the evidence and are material as affecting the right of the plaintiff to have his case submitted to the jury.

On the question as to the place of sale, the learned court below seemed to be of the opinion that inasmuch as the defendant contested the claim on other grounds and particularly on the ground of agency, that the question of the legality of the sale should not be inquired into. In this the court was in error. As between vendor and vendee the contract in suit in all its essential elements must be clear of illegal acts when it grounds an action for the recovery of money for goods sold. If the contract is founded on an illegál transaction, and suit is brought for goods sold and delivered, it is immaterial what the defense to the contract may be. The fact that the defendant claims agency will not prevent the court from striking down such contract and declaring it void as against public policy. At the conclusion of the plaintiff’s case, with no testimony of agency present, with an illegal transaction as the basis of suit, it is the duty of the court to refuse to become a party to the furtherance of the illegal act. The plaintiff’s statement, after a careful analysis, contains no claim on account of agency; the books offered in evidence did not show an account between principal and agent, but that of ordinary debt- or and creditor, and the plaintiff denied entirely defendant’s agency. The case was not within the rule laid down in Hertzler v. Geigley, 196 Pa. 419. It was not necessary for the defendant to specially plead the illegality of the transaction. “Whenever it appears bn the trial of ah action of assumpsit (whether in the plaintiff’s case in chief, or upon cross-examination, or by way of defense, under the plea of non assumpsit) that the plaintiff’s claim rests upon an illegal foundation the court will not lend its aid to enforce it”: Johnson v. Hulings, 103 Pa. 498. The appellee admitted that the goods were shipped to the plaintiff in care of the Union Storage Company. This was done at defendant’s request. But it further appears that they were stored on the plaintiff’s account and were delivered to the defendant on the plaintiff’s order, signed by the defendant, and sometimes delivered to others than the defendant. These facts are material in determining where the sale was actually made, notwithstanding the positive statement of the plaintiff that the goods were sold and delivered in the State of New York. There is sufficient in these admissions to warrant the jury in finding that the sale actually took place in Allegheny County. If the sale took place in Allegheny County, it is an illegal act, as neither the plaintiff nor the defendant was licensed to sell liquors in that county. The jury should have been instructed that if they found the sale to have been made in Allegheny County the contract was void and the plaintiff could not recover. “Where a party seeking to recover is obliged to make out his case by showing an illegal contract or transaction, or through the medium of an illegal contract or transaction, he is not entitled to recover for any advances made by him in connection with the contract, or money due him as profits derived from the contract”: Vandegrift v. Vandegrift, 226 Pa. 254. Nor can he recover the price of goods sold on such illegal contract.

The fifth assignment of error is sustained, judgment is reversed and a venire facias de novo awarded.