Burbank v. McDuffee

• Decision Date: 03 July 1876
• Citation: 65 Me. 135
• Parties: S. D. BURBANK et als. v. JOHN W. MCDUFFEE.
• Court: Maine Supreme Court

65 Me. 135

S. D. BURBANK et als. v. JOHN W. MCDUFFEE.

Supreme Judicial Court of Maine.

July 3, 1876

1875.

ON EXCEPTIONS from the superior court.

ASSUMPSIT for jewelry in two items, forwarded by the plaintiffs from their office in New York, to the defendant at Lewiston, the first lot charged March 21, 1874, at $31.50, the second April 1, 1874, at $9.83.

The justice presiding who tried the cause without a jury, and with right of exception, allowed the second item, but disallowed the first, under a ruling to which the plaintiffs excepted, which is stated in the opinion.

N Morrill and G. C. Wing, for the plaintiffs.

M. P Frank, for the defendant.

APPLETON C. J.

These plaintiffs received from the defendant an order dated February 28, 1874, for certain goods which they forwarded on 21st March, to the amount of $75.38. The defendant returned goods to the value of $43.88, leaving a balance of $31.50 due.

The plaintiffs received a second order dated March 26, for certain articles of the value of $9.75, which they forwarded the defendant on April 1, 1874, in a registered letter.

It appearing that one Chandler, a traveling salesman for the plaintiffs, procured the defendant to give the first order, the presiding judge ruled that under the provisions of R. S., 1871, c. 44, § 1, the plaintiffs could not recover for the goods so ordered and retained, and rendered judgment for the plaintiffs, only for $9.83, being for the goods forwarded April 1, 1874.

By R. S., 1871, c. 44, § 1, " no person, except as hereinafter provided, shall travel from town to town, or place to place in any town, on foot, or by any kind of land or water conveyance, carrying for sale, or offering for sale, any goods, wares or merchandise, whole or by sample, under a penalty of not less than fifty, nor more than two hundred dollars, and the forfeiture of all property thus unlawfully carried," & c., & c.

The statute relates to hawkers and peddlers. It imposes a fine on the person traveling in violation of its provisions. It forfeits goods " unlawfully carried." It forbids the traveling and " the carrying for sale, or offering for sale," but not the selling. It does not make the sale void, unless by implication, and that a forced one. But forfeitures and the confiscation of honest debts are not to be implied. They must be the results of express legislation, and not a matter of inference. In Harris v. Runnells, 12 Howard, (U. S.) 79, it was held, that when the sale was an offense by reason of a statute, but the act itself was not immoral, and the sale itself was not declared void by the statute, there was no implication from the mere infliction of the penalty, that the contract was void.

The sale was effected by an order drawn by the defendant upon the plaintiffs. Suppose it be conceded, that the defendant gave his order by the procuration of the plaintiffs' agent still the act does not prohibit this. In the act relating to intoxicating liquors, R. S., c. 27, § 20, " the offering to obtain, or obtaining orders for the sale of any...