Moog v. Espalla
| Decision Date | 24 June 1891 |
| Parties | MOOG v. ESPALLA. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Mobile county; W. E. CLARKE, Judge.
Action by Isaac B. Moog against Joseph Espalla, Jr., administrator of the estate of John Hannon, deceased, to recover for liquors sold. Judgment for defendant. Plaintiff appeals. Affirmed.
William E. Richardson, for appellant.
Overall & Bestor, for appellee.
Plaintiff's suit was upon an account for goods sold to defendant's intestate on the 12th day of January, 1885. After pleading the general issue and other pleas, for a further plea the defendant answered that the consideration of the claim was three barrels of whisky sold to defendant's intestate by plaintiff's assignor, B. Moog, who was at the time of the sale engaged in the business of wholesale dealer in liquors and did not have a license to sell liquors, either as a wholesale or retail dealer in liquor, and that the sale or contract was void. The plaintiff demurred to the plea upon the grounds that the complaint averred that the sale was made on the 12th day of January, and by law he was allowed to the 15th day of January to take out his license. The demurrer was overruled, and plaintiff replied to the plea, setting up the same facts raised by the demurrer. For a further replication the plaintiff replied that B. Moog, the vendor, intended to take out a license as a wholesale dealer in liquors, but before the 15th day of January his entire stock of goods was levied upon by attaching creditors, which destroyed his business, and prevented him from getting his license. The defendant's demurrer to these replications having been sustained, the plaintiff declined to plead further, and the court rendered judgment for the defendant.
The sale of liquor, if the facts stated in defendant's plea were true, and which both the demurrer and plaintiff's replication admit to be true, was prohibited by statute, and unlawful. Sections 490, 494, Code 1876. See division 3. In Shippey v. Eastwood, 9 Ala. 200, it was declared that "it had been repeatedly determined that a penalty inflicted by statute upon an offense implies a prohibition and a contract relating to it is void, although the statute may not expressly declare the contract to be void." And in McGehee v. Lindsay, 6 Ala. 16, the court held "It is not necessary that a statute should impose a penalty for doing or omitting to do something in order to make a contract void which is opposed to its operation." In Woods v. Armstrong, 54 Ala. 152, these authorities are quoted with approval, and it was declared that the principles enumerated were founded on the soundest principles of morality and public policy, and their enforcement was...
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