Albertson & Co. v. Shenton

• Decision Date: 24 June 1916
• Citation: 98 A. 516
• Parties: ALBERTSON & CO. v. SHENTON.
• Court: New Hampshire Supreme Court

98 A. 516

ALBERTSON & CO.

v. SHENTON.

Supreme Court of New Hampshire. Hillsborough.

June 24, 1916.

Exceptions from Superior Court, Hillsborough County; Branch, Judge.

Action by Albertson & Company against Shenton. Judgment for plaintiff and defendant excepts. Exception sustained, and judgment ordered for defendant.

Trover, for a diamond ring. Facts agreed. March 7, 1912, the plaintiffs' agent sold the defendant the diamond ring for $155, and the defendant signed a lease agreeing to pay the price stated and stipulating that the title should vest in him upon payment of the full amount. Fifty-seven dollars is still unpaid. The plaintiffs agent had no license as hawker and peddler, and was violating the statute when this sale was made. (P. S. c. 123, § 1.) If selling without a license is a defense the defendant is to have judgment.

Henri A. Burque, of Nashua, for plaintiff. Marcel Theriault, of Nashua, for defendant.

PARSONS, C. J. In answer to the elementary proposition that no right can be founded upon a transaction which involves a violation of law (Piper v. Railroad, 75 N. H. 435, 436, 437, 75 Atl. 1041, and cases there cited), the plaintiffs make two claims: (1) That the imposition of a penalty for "carrying for sale or exposing for sale" is not a prohibition of a sale merely (Jones v. Berry, 33 N. H. 209; Brackett v. Hoyt, 29 N. H. 264; Williams v. Tappan, 23 N. H. 385); and (2) that the imposition of a penalty as a mere revenue regulation and not for the protection of the public is not a prohibition of the act denounced by the penalty (Corning v. Abbott, 54 N. H. 469; Lewis v. Welch, 14 N. H. 294, 298; Favor v. Philbrick, 7 N. H. 340).

Assuming that these positions are well taken, they do not aid the plaintiffs. In effect the claim is that the Legislature did not intend in the statute, which it is agreed the plaintiffs violated, to prohibit the transaction upon which their rights depend. "Where the purpose is to prohibit an act, there is no power in the court to allow the act to be the foundation of a right to recover." Gilchrist, J., Lewis v. Welch, 14 N. H. 294, 298. As a general rule, if not invariably, the imposition of a penalty for the doing of an act is held to be equivalent to an express prohibition of the act. Brackett v. Hoyt, 29 N. H. 264; Roby v. West, 4 N. H. 289, 17 Am. Dec. 423. But this principle is not of importance in the present case. The statute in force March 7, 1912, in relation to hawkers and peddlers is chapter 76 of the Laws of 1897. The first section of this chapter reads:

"No person shall do any business as a hawker or peddler, or go about from town to town, or from place to place in the same town, exposing for sale or selling any goods, wares, and merchandise * * * until he shall have procured a license so to do." Laws 1897, c. 76, § 1.

If there can be a sale without an exposing for sale and a going about exposing for sale without a sale, so that the offense may be complete without a sale, as there may be a keeping for sale without a sale (State v. Havey, 58 N. H. 377, 378; State v. McGlynn, 34 N. H. 422, 427), there can be no going about selling without a sale. The sale is an essential part of the prohibited act; hence a sale by one going about selling is within the prohibition of the statute. The conclusion of the court in Jones v. Berry, supra, is put upon the ground that:

"The statute relating to peddlers declares, not that every peddler, or other person, going from place to place, selling, etc., shall be liable to the penalty, but carrying to sell, or exposing for sale." 33 N. H. 211.

Upon this reasoning was based the conclusion of the court that the prohibition did not extend to the sale itself. Under the present statute, Jones v. Berry is not an authority sustaining the plaintiffs' contention, while the reasoning of the court tends to the opposite conclusion when applied to the language used by the Legislature in 1897. If in analogy to the logic of Jones v. Berry it should be said that there might be a sale without a "going about," that consideration is immaterial in this case, as is also the reasoning in Jones v. Berry, since it is agreed that the plaintiffs' salesman was violating the statute when making the sale. If "carrying," or "exposing for sale," or "going about" are essential incidents to render a sale a violation of the statute, the agreement admits the existence of the necessary facts. If the illegality is to be found only in the "carrying," "exposing," or "going about," and either fact is part of what was done, the entire transaction would be affected thereby, and the sale founded upon such violation of law void. Williams v. Tappan, 23 N. H. 385, 394. Moreover, after prescribing how a license may be obtained, the law of 1897 provides in section 3, "every person so licensed may sell," making clear the legislative understanding that selling without a license had been forbidden.

"When a contract is prohibited by statute, it is immaterial to inquire whether the statute was passed for revenue purposes only or for any other object. It is enough that Parliament has prohibited it, and it is...