Oakes v. Merrifield

• Decision Date: 06 December 1899
• Citation: 45 A. 31,93 Me. 297
• Parties: OAKES v. MERRIFIELD.
• Court: Maine Supreme Court

45 A. 31

93 Me. 297

OAKES

v. MERRIFIELD.

Supreme Judicial Court of Maine.

Dec. 6, 1899.

(Official.)

Report from supreme Judicial court, Androscoggin county.

Action by Henry W. Oakes against Charles J. M. Merrifield. Case reported. Judgment for defendant.

Argued before PETERS, C. J., and HASKELL, WISWELL, STROUT, and SAVAGE, JJ.

H. W. Oakes, J. A. Puisifer, and F. E. Ludden, for plaintiff.

W. H. Newell and W. B. Skelton, for defendant.

SAVAGE, J. The plaintiff, as indorsee, seeks to recover against the defendant upon two notes (one for $75 and one for $200) given by the defendant, payable to the order of J. H. Montgomery.

The case shows that on November 18, 1890, the defendant gave to the firm of C. Berry & Co., Boston, a note, payable to his own order, for the sum of $437.20. In May, 1897, Berry & Co. indorsed and delivered the note to Mr. Montgomery, and he brought an action upon it, in his own name, by trustee process. October 23, 1897, the action was settled, and the trustee released, upon the defendant's giving to Mr. Montgomery $50 in money and the two notes in suit, which Mr. Montgomery indorsed upon the original note. The defendant, however, claims that the money and notes were given in full settlement and payment of the original cause of action.

It is admitted that the consideration of the first note was intoxicating liquors purchased In Boston, and the defense claims that these liquors were purchased out of the state with intention to sell the same in violation of the laws of this state, and that the provisions of Rev. St. c. 27, § 56, afford a perfect defense. The section referred to provides that "no action shall be maintained upon any claim or demand, promissory note, or other security contracted or given for intoxicating liquors sold in violation of this chapter, or for any such liquors purchased out of the state with intention to sell the same or any part thereof in violation thereof; but this section shall not extend to negotiable paper in the bands of a holder for a valuable consideration and without notice of the illegality of the contract."

The contention of the plaintiff is (1) that there is no evidence that the liquors were intended for unlawful sale in this state; (2) that Montgomery was a holder of the original note "for a valuable consideration and without notice of the illegality of the contract," and hence that notes given in settlement or renewal of it would be valid (Pield v. Tibbetts, 57 Me. 358); and (3) that, even if the statutory defense might have been made in an action upon the original note, it is not open upon the notes in suit, which plaintiff claims were given for new, independent, and lawful considerations, namely, the discontinuance of the first suit and the releasing of the trustee.

In regard to the plaintiff's first contention, it is sufficient to say that we think that the only reasonable and legitimate inference to be drawn from the evidence is that the liquors were intended for unlawful sale in this state. The defendant was a hotel keeper. The value of the liquors purchased was $'537, for which he gave his note for $137 and his check for $100. It...