Brauer v. Hyman

• Decision Date: 18 June 1923
• Docket Number: No. 9.,9.
• Citation: 121 A. 667
• Parties: BRAUER v. HYMAN et al.
• Court: New Jersey Supreme Court

121 A. 667

BRAUER

v. HYMAN et al.

No. 9.

Court of Errors and Appeals of New Jersey.

June 18, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Abe Brauer, doing business under the name and style of A. & C. Brauer, against Harry Hyman and others. From Judgment for defendants, plaintiff appeals. Affirmed.

Kelsey & Ludwig, of Jersey City, for appellant.

Jacob Feinberg, of Bayonne, for respondents.

WALKER, Ch. This was a suit in the Supreme Court, tried at the Hudson circuit by Judge Speer, who nonsuited the plaintiff who has appealed here from the judgment thereon.

Judge Speer in granting the nonsuit said, inter alia, that the contract was that of a business for the sale of alcoholic beverages, called in the contract wines and liquors, which beverages were required to be sold under a license procured from the public authorities; that the contract was legal when made, because at that time the sale of alcoholic beverages was legal when conducted in accordance with the provisions of the law, but later certain acts were adopted, and for the purposes of this suit only one needed to be mentioned, and that was an act of Congress, and therefore the supreme law of the land, called the Wartime Prohibition Act of Nov. 21, 1918, c. 212, 40 Stat. 1045, and that act made it illegal to sell any wines and liquors etc.; that the contract provided that $900 should be paid down, and that thereafter installments should be paid at the rate of $25 a month until the sum of $2,000 (the balance due on the contract) was paid, then the defendant would become entitled to a bill of sale from the plaintiff to transfer the title to the business, title having been reserved in the plaintiff until full payment made; that as fast as the stock of wines and liquors should be sold to, and consumed by, the customers of the defendant, they should be replenished, and the replenished stock (which was to be purchased from plaintiff) should be the property of, and title thereto should remain in, the plaintiff; that when the bill of sale became due, under the terms of the contract, the plaintiff could not comply with the covenant to make the bill of sale, because the law had made it illegal on the part of the plaintiff to transfer title to alcoholic beverages, etc., and therefore it was illegal for the plaintiff to go forward further with the contract, and likewise illegal for the defendant to go forward further with the contract; in other words, that there had arisen what is called in the later cases a commercial frustration of the contract; that the illegality in this case arose not by reason of the action of the parties, but by something entirely alien to them, namely the act of the government.

In addition to the above facts it should be stated that Harry Hyman made the monthly payments of $25 each to and including August 4, 1919, amounting in the aggregate to $1,100, which left $900 still due and owing by the terms of the contract, and for which...