Niagara Falls Brewing Co. v. Wall

• Decision Date: 22 December 1893
• Citation: 57 N.W. 99,98 Mich. 158
• Court: Michigan Supreme Court
• Parties: NIAGARA FALLS BREWING CO. v. WALL.

57 N.W. 99

98 Mich. 158

NIAGARA FALLS BREWING CO. v. WALL.

Supreme Court of Michigan

December 22, 1893

Error to circuit court, Saginaw county; Chauncy H. Gage, Judge.

Assumpsit by the Niagara Falls Brewing Company against James J. Wall for goods sold and delivered. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Tarsney & Wicker, for appellant.

Weadock & Purcell, for appellee.

GRANT J.

On May 7, 1891, defendant wrote plaintiff requesting the agency of the city of Saginaw and vicinity for the sale of plaintiff's beer. May 11th plaintiff wrote, accepting defendant's offer, in the following language: "In regard to your request to give you the agency for our beer for your city and the vicinity, as we are very willing to do so, and not to sell it to anybody else as long as you are handling the same with good advantage, and you promptly fill the agreement to pay for the first car when you are ordering the second, and so on. We, on our part, will pay great pains to send to you right along an A No. 1 beer which will find the full satisfaction of your customers, and so we hope that you will secure and build up a good trade for it." A similar arrangement had before existed by parol. Plaintiff shipped to defendant beer under the arrangement. This suit is brought for one car load of beer. It was conceded that there was due plaintiff $421.95, subject to any recoupment defendant might have. This claim of recoupment is based upon alleged violation of the contract by plaintiff in making one sale of beer to another liquor dealer in the city of Saginaw. This sale, claimed to be in violation of the contract, was made May 26th; the consignment reaching Saginaw on the 28th. Defendant learned of this sale on the same day the goods reached the vendee. He immediately treated the contract as rescinded and discontinued ordering beer from the plaintiff. Defendant made sales of the beer thus received at various times between May 11th and June 6th. From May 1st to June 6th the defendant was engaged in an illegal traffic, for he had not paid the tax nor filed the bond required by the law as a condition precedent to entering into the traffic. There is no evidence that the plaintiff was aware of this fact. Defendant now seeks to recover damages while engaged in a business which was criminal, and for which he was subject for every day in which he was thus engaged to a fine or imprisonment or both, in...