McConihe & Co. v. McMann , 27 Vt. 95 ( 1854 )

The opinion of the court was delivered by

Bennett, J.

No well grounded objection can be made to the plaintiffs’ right to recover for the bill of liquors sold on the 28th of February, 1851. They were sold hi the state of New York, and no acts were done in this state by the jjlaintiffs, or any authorized agent of theirs, to induce the sale. Though Gaylard recommended the defendant as worthy of credit, and sent on his order for the liquors, yet it is found that he then acted solely at the request of the defendant, and purely in his behalf, and was not at that time in the employ of the plaintiffs. This, then, was altogether a New York transaction, and is to be governed by the laws of that state.

A different state of facts exists, as to the subsequent bills. The defendant was a tavern keeper at Burlington, and purchased the liquors to sell without having a license, and this was known to Gay-lard at' the time of the sale; and the plaintiffs themselves were aware that the laws of this state required a license for the sale of spirituous liquors, although not of its particular provisions. Notice to Gaylard that the defendant purchased them to sell without having a license was notice to the plaintiffs. Gaylard, at the time these bills were made, was in the employ of the plaintiffs in vending spirituous liquors, and agreed upon the quantity, price, time of payment, and quality of the liquors, and specified the same in his orders to the plaintiff, all of which was done in this state by the agent. Though done subject to the approval of the plaintiffs, yet it is found they always adopted the acts of Gaylard, and forwarded the liquors agreeably to his orders, if satisfied with the solvency of the purchasers, and the cáse finds that 'it was the understanding of the parties that they should do so. The plaintiffs were then aiding the defendant to violate a statute law of this state, with a knowledge that it was his intention so to do. They sent their agent into this state to vend liquors, and the plaintiffs sent them on by the common carriers agreeably to the contracts made by the agent. It is not material to inquire whether the purchase was finally consummated in this state or in the state of New York. The plaintiffs come into our courts with an ill grace to seek their aid in obtaining redress. They became abettors of the defendant in the violation of the law; and this case is -within the principles of the case of Lightfoot v. Tenant, 1 Bos. & Pul. 551; of Langton v. Hughes, 1 Maul & Sel. 593; and of Territt v. Bartlett, 21 Vt. 184.

It is distinguishable from Holman v. Johnson, Cowp. 341, where the plaintiff had a mere scienter, but no connection directly or indirectly in the smuggling concern. The case of M’Intyre v. Parks, 3 Met. 207 was, decided upon the authority of Holman v. Johnson, and adopts the same distinction.

No question has been made in argument on the application of the payments, as allowed by the county court, and, jierhaps, none can be made. At all events we are not disposed to raise any.

Judgment affirmed.