Phillips v. Moses

Barrows, J.

One who has sold and delivered goods which may be the subject of lawful sale does not forfeit his right to recover the price thereof because he has, concurrently in point of time, made sales to the same party, in violation of law, of other goods, the sale of which is prohibited by statute. He may strike out of his account the illegal items which the law will not aid him to recover, and have judgment for what appears to be legally due. Towle v. Blake, 38 Maine, 528. Boyd v. Eaton, 44 Maine, 51. Monroe v. Thomas, 61 Maine, 582.

The purchaser of goods, the sale of which is prohibited as against public policy, e. g., intoxicating liquors, if he pays for them, has no right of action at common law, (and at present none *72 by statute in this state,) to recover back tbe purchase money. Mudgett v. Morton, 60 Maine, 260.

It is clear, , therefore, that he cannot make such payments in any manner available as an offset against a demand for goods lawfully sold; nor when once appropriated with his consent to such illegal items, can he withdraw that consent against the will of his creditor, and claim to have them reckoned as payment for legal purchases. Plummer v. Erskine, 58 Maine, 59. Richardson v. Woodbury, 12 Cush., 279 . Treadwell v. Moore, 34 Maine, 112.

The right of the debtor to control the appropriation of a payment at the time of making it is unquestionable, even though he sees fit to appropriate it to a claim arising in violation of law. If he waives his privilege and makes his payment upon his indebtedness generally, without designating its application,0his creditor having several lawful demands may appropriate the payment to such of them as will be most beneficial to himself. This is allowed even in cases where some of the demands are not recoverable at law, provided the contracts out of which they arise are not absolutely illegal and prohibited.

There is á well marked distinction in this matter of the right of the appropriation by the creditor between demands growing out of contracts which the law simply declines to enforce, and those which it directly prohibits.

Thus, under a statute which declared that no person should be entitled to maintain, an action for or recover any sum of money due on account of spirituous liquors unless such debt shall have been contracted at one time to the amount of twenty shillings or upwards, a creditor of that description was held entitled to appropriate payments made generally on account, to those items, and recover the balance due for other articles. Philpott v. Jones, 2 Ad. & El., 44.

And a like right of appropriation was held by this court to exist when a part of the sum due the plaintiff was not legally recoverable by reason of the statute of frauds ; Murphy v. Webber, 61 Maine, 478; and where infancy was set up as a bar to the recovery of a portion of the debts; Thurlow v. Gilmore, 40 Maine, 378.

.But the law recognizes no such right of appropriation in the *73 creditor when one of his demands is positively unlawful. If a person has two demands, one clearly lawful, the other accruing from a transaction forbidden by law, and an unappropriated payment is made to him, the law will afterwards appropriate it to the demand which it acknowledges and not to the demand which it prohibits. Wright v. Laing, 3 B. & c C., 172. Rohan v. Hanson, 11 Cush., 44 . In brief, while the debtor can make an irrevocable appropriation of a payment to illegal claims, the creditor cannot, without the consent, express or implied, of the debtor.

The debtor’s consent, once given, cannot be recalled except by mutual agreement. It is not necessary that such consent should be embodied in any set form of words. It may be inferred from acts, circumstances, course of dealing, knowledge of such appropriation by the creditor and tacit consent thereto, as well as by, words evincive of an intention to make such appropriation, or of assent to sucb appropriation already made by the creditor.

The foregoing rules were given to the jury by tbe presiding judge in a charge to which no exceptions are taken, and the main question for ns is, whether the testimony in the case is of such a character as requires us to set aside the verdict for the defendant as being against evidence.

Without rehearsing the facts proved and admitted, or the testimony given, to any extent, it is sufficient to say that in view of the length of time during which these transactions continued, the course of dealing between the parties, the great number of sales, and the frequency, mode and amount of the defendant’s payments, and his own statements upon cross-examination, that he never paid at any particular time more than he thought was due, (though his payments were greatly in excess of the legal items,) that at the time he was burned out his account amounted to $2400, and that he never said he did not intend to pay for the liquors because be did intend to pay for the whole, it must be said that the undisputed facts and his own avowals overpower his assertion that he intended to appropriate his payments to the legal part of the accounts so completely, as to lead us to the conclusion that the jury either misapprehended the testimony or the instructions, or were *74 governed by some bias or prejudice which misled them as to the force and effect of the testimony in the case.

Motion sustained.

Mew trial granted.

Appleton, C. J., Walton, Daneorth, Virgin and Peters, JJ., concurred.