Fineman v. Faulkner

• Decision Date: 12 September 1917
• Docket Number: 70.
• Parties: FINEMAN v. FAULKNER.
• Court: North Carolina Supreme Court

93 S.E. 384

174 N.C. 13

FINEMAN v. FAULKNER.

No. 70.

Supreme Court of North Carolina

September 12, 1917

Appeal from Superior Court, Edgecombe County; Whedbee, Judge.

Action by G. C. Fineman against J. B. Faulkner. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action against the administrator of Mamie Faulkner upon a note for the purchase of an Edison machine. The defense set up by the administrator is that the note was void because contrary to public policy. Counsel agreed upon the following statement of facts:

"That defendant's intestate was on September 18, 1916, and several years prior thereto, a public prostitute, and was on said date carrying on her trade at her home in Princeville, across the river from the town of Tarboro that plaintiff knew by general reputation at the time the paper writing set forth in the complaint was executed that the defendant's intestate was a prostitue, and, knowing such, sold her the musical instrument referred to delivered it and records to her home in Princeville, and had her execute the paper writing referred to in section 1 of the complaint; that plaintiff had no interest in the business of defendant's intestate, and in no way aided her in carrying it on, other than the mere sale of the musical instrument to her might be said to do so; that the sale to her was in the usual course of business and similar in terms, and in every way, to other sales made by him from time to time; that the plaintiff is a retail dealer of pianos and talking machines in the town of Tarboro, N. C that the machine in question was of the character in general use and had no slot attachment."

James M. Norfleet and A. W. MacNair, both of Tarboro, for appellant.

Don Gilliam, of Tarboro, for appellee.

CLARK C.J.

Mr. Gilliam, the counsel for the plaintiff, is absent in the army, but we think the principles covering this case are admirably summed up in the following quotation, which with a slight modification is taken from the brief:

"When the selling of goods is in itself unlawful, the price cannot be recovered with the aid of the court. When the thing sold can only be used for an unlawful purpose, the price cannot be recovered; but when the sale of the goods is entirely lawful, and the thing sold is, under ordinary circumstances, used for a perfectly lawful and legitimate purpose, the mere knowledge of the vendor that the vendee is a person of bad character or engaged in an unlawful business will not prevent recovery by the vendor, provided he did not sell the article to aid in the unlawful business nor was accessory to the unlawful use of the article by the vendee, further than by selling the article which so far as he was concerned might be used in a perfectly lawful and proper manner."

It would be singular if the purchaser of an article of this kind, which is not ordinarily used for immoral purposes, can refuse payment or her administrator can be protected from payment, upon the ground that the purchaser was a person of bad character or engaged in an illegal occupation. It would be as reasonable to say that such persons are exempt from liability to pay for provisions or for clothing or anything else. This would be, indeed, encouragement to them, unless it should debar them from all such purchases, neither of which the law intends. Suppose a merchant or a grocer should sell provisions or clothing in the ordinary course of dealing, to one whom he happens to know is engaged in illicit distilling or retailing intoxicating liquors or in any other unlawful occupation, without aiding him in his unlawful purposes; can such illicit dealer plead his own illegal occupation to prevent payment for the articles thus bought?

In State v. Bevers, 86 N.C. 595, it is said that to defeat the plaintiff's recovery--

"it must appear that the very party who is seeking aid from the court participated in the unlawful purpose: Indeed, it is said that the very test of the application of the principle is whether the plaintiff can establish his case otherwise than through the medium of an illegal transaction, to which he was himself a party."

In this case it is agreed as a fact:

"That plaintiff had no interest in the business of defendant's intestate and in no way aided her in carrying it on, other than that the mere sale of the musical instrument to her might be said to do so; that the sale to her was in the legal course of business, and similar in terms, and in every other way, to other sales made by him from time to time."

In Armfield v. Tate, 29 N.C. 258, it was held that:

"The circumstances that the vendor was informed, before the completion of the contract, that the vendee intended the place as a residence for his kept mistress, does not vitiate the contract"

--the court saying that the fact that the vendee intended to use the house for an immoral purpose did not destroy the contract, for the use to which he intended to put the property after he became the owner of it should not protect him from payment of the purchase money to the vendor who had no control over...