E. Distrib. Corp. v. Lightstone, 99.

• Decision Date: 02 March 1932
• Docket Number: No. 99.,99.
• Citation: 241 N.W. 189,257 Mich. 184
• Parties: EASTERN DISTRIBUTING CORPORATION v. LIGHTSTONE.
• Court: Michigan Supreme Court

257 Mich. 184

241 N.W. 189

EASTERN DISTRIBUTING CORPORATION

v.LIGHTSTONE.

No. 99.

Supreme Court of Michigan.

March 2, 1932.

Appeal from Circuit Court, Wayne County; Charles B. Collingwood, Judge.

Action by the Eastern Distributing Corporation against Richard R. Lightstone, doing business as the Michigan News Company. From a judgment for defendant, plaintiff appeals.

Reversed, and new trial granted.

Argued before the Entire Bench.Irwin I. Cohn, of Detroit (Sidney J. Karbel, of Detroit, of counsel), for appellant.

Davidow & Davidow, of Detroit, for appellee.

WIEST, J.

Under a written contract, plaintiff furnished defendant with magazines for resale in the city of Detroit. The written contract did not state the prices to be paid for the different magazines, but this was agreed upon between the parties. This suit was brought to recover the amount due for magazines so furnished and not paid for.

The declaration was upon the contract and the common counts in assumpsit. The defense was that many of the magazines so furnished were obscene and violated the law of this state and an ordinance of the city of Detroit, and therefore the contract was immoral, illegal, and contrary to public policy, and, being indivisible, there could be no recovery even for legitimate magazines furnished. The circuit judge so held, and entered judgment for defendant. The circuit judge found some of the magazines were obscene and immoral, and such finding is not questioned.

Upon appeal by plaintiff, we are asked to permit severance of the immoral magazines from the legitimate ones and allow recovery for the latter.

No recovery can be had upon the contract, for, while valid upon its face, it permitted plaintiff to select immoral magazines and obligated defendant to pay for all magazines selected, and plaintiff did select and furnish magazines prohibited from circulation within this state. This, however, does not decide the case, for, under the common counts, there may be recovery for the agreed prices of legitimate magazines furnished, if such are severable from the illegitimate ones. Defendant was to pay for all magazines furnished, but not in a lump sum, as each magazine carried its own purchase price. The rule in such case is well stated in 13 C. J. 515: ‘Where the agreement consists of several promises based on several considerations, the fact that one or more of the considerations are illegal will not avoid all the promises, if those which are made on legal considerations are severable from the others. Thus, where goods are sold at a separate price for each article, and the sale of some of the articles is illegal, an action will lie nevertheless for the price of any of the other articles.’ The cases cited bear out the quoted text.

In Carleton v. Woods, 28 N. H. 290, the action was assumpsit to recover for goods sold and delivered. The defendant therein contended that the contract was an entire one, that a part of the consideration was illegal, and that the plaintiff could not recover any part of the price of the articles. The court held that: ‘By the contract, each article was to be separately valued. * * * The bargain was, in effect, a contract to pay for each article a price to be determined in the manner before stated. The consideration for the promise to pay for the goods is not to be regarded as one and indivisible. The sale and delivery of...