Phillips v. Moses

• Decision Date: 22 February 1876
• Citation: 65 Me. 70
• Parties: WALTER F. PHILLIPS et als. v. HENRY O. MOSES.
• Court: Maine Supreme Court

65 Me. 70

WALTER F. PHILLIPS et als. v. HENRY O. MOSES.

Supreme Judicial Court of Maine.

February 22, 1876

1875.

In general, where there are several demands or items, some of which are legal and others illegal, a general payment must be applied to the legal charges, to the exclusion of the illegal ones,-to debts lawfully due, and not to unlawful claims.

ON MOTION.

ASSUMPSIT.

The plaintiffs, September 13, 1873, sued the defendant in the superior court for a balance due on account to date, of $3481.68. The accounts were sent to an auditor, who found due the plaintiffs $2077.04.

There was evidence at the trial afterwards before the jury that the defendant, who was a retail druggist at Bridgton, had been a regular purchaser on open account current from the plaintiffs, who were wholesale druggists at Portland, from 1868 to about the time the suit was commenced; that the amount of such purchases of all kinds was $21,711.28, and included therein were purchases of alcohol and other spirituous liquors to the amount of $6842.26; that payments were from time to time made by the defendant to the plaintiffs without designating specially for what items intended, and were passed by the plaintiffs upon their ledger to the credit of the whole account; that all the payments amounted to $19,616; that near January, 1872, there was a settlement in which the books were balanced to the July previous; that at about the time of the settlement the defendant's store at Bridgton was burned, and new arrangements made, in accordance with which his purchases thereafter for the year 1872 were adjusted and paid, leaving due at the date of the writ, as the plaintiffs claimed charges for the years 1871 and 1873 to the amount allowed by the auditor, that amount being only the balance after deducting all charges for alcoholic liquors.

The defendant denied the settlement, and testified that the account was continuous and ran all the way from $1200 to $3500; that at the time he was burned out it was about $2400 that he never paid at any particular time more than he thought was due; that he intended to appropriate his payments to the legal part of the account; that he never said he did not intend to pay for the liquors, because he did intend to pay for the whole.

The jury returned a verdict for the defendant, and the plaintiffs filed a motion to set it aside.

N Webb and C. Hale, for the plaintiffs, submitted that the defendant himself appropriated the money paid, in payment for the liquors as well as the legal items; that he must have intended his payments for some purpose; that if he did not intend to pay for the spirits as well as other drugs, then he kept his account overpaid a great part of the time, and paid in all nearly $5000 more than was due; that the jury had fallen into a manifest error, whether from prejudice or a misunderstanding of the charge and the effect of the auditor's report and other evidence, was not necessary to consider. The error should be corrected.

S. C. Strout & H. W. Gage, for the defendant, contended that as matter of fact he did not appropriate the payments.

BARROWS J.

One who has sold and delivered goods which may be the subject of lawful sale does not forfeit his right to recover the price thereof because he has, concurrently in point of time, made sales to the same party, in violation of law, of other goods, the sale of which is prohibited by statute. He may strike out of his account the illegal items which the law will not aid him to recover, and have judgment for what appears to be legally due. Towle v. Blake, 38 Me. 528. Boyd v. Eaton, 44 Me. 51. Monroe v. Thomas, 61 Me. 582.

The purchaser of goods, the sale of which is prohibited as against public policy, e. g., intoxicating liquors, if he pays for them, has no right of action at common law, (and at present none by statute in this state,) to recover back the purchase money. Mudgett v. Morton, 60 Me. 260.

It is clear, therefore, that he cannot make such payments in any manner available as an offset against a demand for goods lawfully sold; nor when once appropriated with his consent to such illegal items, can he withdraw that consent against the will of his creditor, and claim to have them...