Crescent Liquor Co v. Johnson

Decision Date11 December 1912
CourtNorth Carolina Supreme Court
PartiesCRESCENT LIQUOR CO. v. JOHNSON, VAUGHAN & CO.
1. Trial (§ 139*)—Questions of Law or Fact.

Evidence which merely makes it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it is so, is an insufficient foundation for a verdict and should not be left to the jury.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.*]

2. Intoxicating Liquors (§ 329*)—Actions on Check—Consideration—Weight and Sufficiency of Evidence.

Evidence that the payee of a check was a liquor dealer is insufficient to show that such check was given for the price of liquor contrary to the statute, although it shows on its face that the maker was engaged in the business of keeping a restaurant and selling hot and cold lunches, soft drinks, fruits, cigars, cigarettes, and tobacco, and hence in an action thereon that question was improperly submitted to the jury.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 474-481; Dec. Dig. § 329.*]

Appeal from Superior Court, Buncombe County; Long, Judge.

Action by the Crescent Liquor Company against Johnson, Vaughan & Company. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted.

W. P. Brown and J. D. Murphy, both of Asheville, for appellant.

WALKER, J. This action is brought to recover the amount of three checks given by defendants to the plaintiff, one dated January 7, 1911, for $100, another dated January 24, 1911, for $85, and still another dated February 7, 1911, for $98. The first was dated at Canton, N. C, and the second at Asheville, N. C. They were drawn on the Bank of Canton to the order of the plaintiff. The jury returned the following verdict: "(1) Did the defendant firm execute and deliver the checks and for the amounts alleged and at dates alleged in the complaint? Answer: Yes. (2) Was the contract made between the plaintiff and defendants made in North Carolina, as alleged in the answer? Answer: Yes. (3) Were said checks executed and delivered and the contract made in this state, for the sale of intoxicating liquors in violation of the laws of North Carolina, as alleged in the answer? Answer: Yes." Judgment was entered for the defendants, and plaintiff appealed.

It appears, on the face of one of the checks, that Johnson, Vaughan & Co. were dealers in "hot and cold lunches, soft drinks, fruits, cigars, cigarettes and tobacco." The defense was that the checks were given for the sale of liquor, contrary to our statute prohibiting the sale of liquor in the state, and upon the principle that, where a contract is entered into by the parties for the purpose of doing something that is prohibited by law, it is not enforceable, as the law will not lend its support to a claim founded upon a violation of itself. Clark on Contracts (2d Ed.) p. 265, and cases in note 38; Vinegar Co. v. Hawn, 149 N. C. 355, 63 S. E. 78; Kelly v. Courter, 1 Okl. 277, 30 Pac. 372; Broom's Legal Maxims, 108; King v. Win-ants, 71 N. C. 469, 17 Am. Rep. 11; Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ed. 539; Ewell v. Daggs, 108 U. S. 143, 2 Sup. Ct 408, 27 L. Ed. 682; Aiken v. Blaisdell, 41 Vt. 655. In Holman v. Johnson, Cowp. 341, Lord Mansfield said: "The principle of public policy is this: Ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating or otherwise, the cause of action appear to arise ex turpi causa, or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff." There is no element of interstate commerce in this case, as the entire transaction was conducted in this state. The simple and single question is whether there was any evidence that the checks were given for the price of liquor sold by the plaintiff to them, and we think, after a careful examination of the testimony in the case, that there was not.

We have settled upon the principle, in regard to the probative force of evidence, and when considering the question whether there is any legal evidence of the fact in issue, as expressed in State v. Vinson, 63 N. C. 335, and approved in numerous more recent decisions: "It may be said with certainty that evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to the jury." See Byrd v. Express Co., 139 N. C....

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15 cases
  • Price v. Edwards
    • United States
    • North Carolina Supreme Court
    • 12 Noviembre 1919
    ...78. Nor must the plaintiff necessarily show a violation of the law in stating his cause of action or inproving it, as in Liquor Co. v. Johnson, 161 N.C. 76, 76 S.E. 625; Wittkowsky v. Baruch, 127 N.C. 313, 37 S.E. King v. Winants, 71 N.C. 469, 17 Am.Rep. 11. It must be borne in mind that th......
  • Mercer v. Powell
    • United States
    • North Carolina Supreme Court
    • 20 Diciembre 1940
    ... ... mere guess, or on possibilities". 23 C.J. 51; State ... v. Johnson, 199 N.C. 429, 154 S.E. 730; Denny v ... Snow, 199 N.C. 773, 155 S.E. 874; Shuford v ... jury.' Brown v. Kinsey, 81 N.C. 245; [Crescent] ... Liquor Co. v. Johnson [Vaughan & Co.], 161 N.C. [74] 77, ... 76 S.E. 625; State v. Prince, ... ...
  • Peterson v. Sucro, 4384.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 19 Enero 1939
    ...a jury to wander aimlessly in the fields of speculation." The court cited Brown v. Kinsey, 81 N.C. 245; Crescent Liquor Co. v. Johnson, Vaughan & Co., 161 N.C. 74, 77, 76 S.E. 625; State v. Prince, 182 N.C. 788, 790, 108 S.E. 330; Swann v. Martin, 191 N.C. 404, 132 S.E. 16. In Spruill v. No......
  • Kirby v. Reynolds
    • United States
    • North Carolina Supreme Court
    • 3 Noviembre 1937
    ... ... jury.' Sutton v. Madre, 47 N.C. 320; ... Crescent Liquor Co. v. Johnson, Vaughan & Co., 161 ... N.C. [74], 77, 76 S.E. 625; Seagroves v. Winston, ... ...
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