Richards v. Columbia

• Decision Date: 18 December 1874
• Citation: 55 N.H. 96
• Parties: Richards v. Columbia.
• Court: New Hampshire Supreme Court

55 N.H. 96

Richards v. Columbia.

Supreme Court of New Hampshire

December 18, 1874

Selectmen cannot lawfully act as agents (under Gen. Stats., ch. 99) for the purchase of spirituous liquors, or appoint one of their number to be such agent, and cannot bind the town for the price of spirituous liquors so purchased.

The plaintiffs cannot, after action commenced, elect to apply payments made generally on account to that part of the account which is illegal

ASSUMPSIT tried before LADD, J., to recover a balance claimed to be due on an account for intexicating liquors sold and delivered by the plaintiffs to the defendants in 1868. The liquors sold were embraced in three bills, the dates and amounts of which were as follows:

(1) March 23, 1868, $530.28; (2) August 11, $273.76; (3) December 7, $71.26---$875.30.

The credits, including $50 discount on a barrel of alcohol, which is allowed by the court, were as follows:

May 21 1868, by cash, $30; July 3, $32; August 29, $75; October

9 $100; December 5, $160; February 15, 1869, $110; April 15 $61; May 25, $30; October 28, 1870, $50; May 9, 1871, discount on alcohol, $50; horse, $127--$825.

The cause was tried by the court, and the following facts were found specially, whereupon such judgment is to be rendered as may be ordered by the whole court.

Before the first bill of liquors was ordered, in the spring of 1868, two, at least, of the three selectmen of Columbia, upon consultation, determined to appoint a liquor agent for the coming year, and that the selectmen, on behalf of the town, should purchase liquor and supply the agency therewith, and that the purchases for that purpose should be made by A. H. Bundy, one of the board. Accordingly, Bundy saw P. S. Benjamin, an agent of the plaintiffs, and gave him an order for the liquor in the first bill. Benjamin forwarded the order to the plaintiffs in Boston, and they there delivered the liquors to a common carrier (charging cartage), directed to the town of Columbia; and they were received according to the bill. In the meantime the selectmen, or a least two of them, had determined to appoint one Harvey, agent, and about the time the liquors arrived, and before they were put on tap, executed and delivered to Harvey an appointment as liquor agent for the ensuing year, in due form; but the same was never recorded in the town-clerk's office, and there is no certificate upon it that Harvey ever took any oath of office. The other two bills of liquor were ordered by Bundy of Benjamin in the same way, and forwarded by the plaintiffs in the same way, except that they were directed to Harvey, liquor agent, instead of the town. All the selectmen understood that the purchases were made on behalf of the town; that the business of the liquor agency was the business of the town, and so treated it throughout their official year, and so reported upon it to the voters of the town at the annual meeting in 1869.

It did not appear that the plaintiffs, at the time of either of the sales, held any appointment from the governor of New Hampshire to supply agents with liquors. But when the second and third bills were sold, the plaintiffs, having a license in Massachusetts, had a legal right to make the sales in that state, and, so far as regards any questions that arise in this case, I find that all three sales were made and completed in Massachusetts. All material statutes of Massachusetts are to be regarded as proved, and may be referred to on the argument. The specification printed in the case was understood to be a copy from the plaintiffs' book, and receipts were given for the money as paid, to apply generally on account. Said receipts may be referred to in the argument. It appeared that the plaintiffs had no authority to sell liquors under the laws of Massachusetts at the time of the first sale. If the plaintiffs can recover on the foregoing facts, they are to have judgment for $82.11, as of the November term, 1873.

Shurtleff and Ray & Drew, for the plaintiffs. G. A. Bingham, for the defendants

^[*]CUSHING, C. J

The first bill of liquors was bought in violation of the law of Massachusetts, and no action can be maintained for any part of it. The case does not find that any application of the amount paid had been made before the commencement of the action. It is well settled that the plaintiffs cannot now elect to apply the payments to that part of the claim which is illegal; and all the other items of the account are paid by the payments which appear in the plaintiffs' account.

So far, then, as the first item of the plaintiffs' account is concerned, the matter stands as if the action was brought to recover the unpaid part of that alone. The purchase and sale of the liquors contained in that item being unlawful, no action could be maintained to recover the price.

The principle, as well expressed by Lord MANSFIELD---Holman v. Johnson, Cowp. 341---is, that a party cannot recover who is obliged to found his action upon his own violation of the law; and upon the same principle, says GRAY, J., in Cranson v. Goss, 107 Mass. 439 (Am. R. 45),---"It follows, that, as between the parties, it is incapable of being confirmed or ratified; for, in suing upon the original contract after its ratification by the defendant, it would still be necessary for the plaintiff, in proving his case, to show his own illegal act in making the contract at first."

On the facts found and reported by the court the plaintiffs cannot recover.

There is another view which may be taken of this transaction, and which leads to the same result.

The business out of which the claim arose, which is the subject-matter of this suit, was an agency established under Gen. Stats, ch. 99. This law, like all the other laws of the state of New Hampshire, is to be administered by the court fairly and impartially. It is not for us to say that we do or do not like the law.

The leading principle of this statute is the absolute prohibition of the sale of spirituous and intoxicating liquors in the state of New Hampshire, excepting for certain specified purposes. The statute makes it the duty of the selectmen to appoint an agent or agents for the sale of such liquors; and it has been held by our court that it is the duty of the town, and when by the neglect of the town it becomes necessary, it is the duty of the selectmen to provide for the agent the means of carrying on the agency. State v. Woodbury, 35 N.H. 232. When they have done this in good faith, their duty in this particular is performed. It is their duty to give the agent a written appointment which must be recorded by the town-clerk, to establish suitable regulations for the guidance of the agent,---perhaps to take from him a bond for the faithful performance of his duties,---and it seems to me that, by the terms of the statute, it is clearly their duty to watch the agents, and see that they conform to the regulations prescribed, and discharge their duties faithfully, and in particular to keep a watchful supervision of the purchases and sales, and see that the agent is deriving no

pecuniary emolument other than the stated compensation fixed by the selectmen, which compensation is not to be increased or diminished by any increase or diminution in the amount of sales and purchases.

Thus strictly has the law endeavored to guard this matter of the purchase and sale of spirituous liquors. It proposes to pay the agent a resonable compensation for his labor and responsibility; it provides that he shall not have any pecuniary advantage...