Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-12-16

before the filing of the petition III III
solvency.
The mortgage contained the follow
ing proviso: 1T shall and may De
lawful for the said Landers ana bap-
bage to continue in possession or all
and singular, the aforesaid goods ana
chattels and make sales of the same
at retail in the usual course OF busl-
ness and with the proceeds of such
sales to buy for cash other goods ana
chattels which shall stand for and IN
the place of the goods and chattels
so sold and to be covered by this
mortgage" The plaintiffs contend and
there was evidence tending to show
that the mortgagers after the date OF
the mortgage from time to time made
additions to the stock in trade by the
purchase of druggists goods on credit
which have never been paid for, and
also by the purchase from time to time
of fixtures, furniture and other chat
tells not of the nature of stock in trade
and not paid for which though placed
in the store. the plaintiff claims were
not subject to the terms or lien of the
mortgage
tiff as assignee in insolvency took only
the property rights and interests of
the insolvent debtor. There was no
evidence OF fraud, actual or construc-
tive on the part of the defendant and
the instruction of the presiding justice
that whatever rights Mr.. Landers
had, his assignee and representative
had and whatever disabilities Mr.
Landers was under by reason of an
illegal contract or otherwise, the plain
tiff was under as his assignee" was
correct as applied to the facts of this
case.
With respect to the plaintiffs con-
tention that intoxicating liquors were
included in the stock of goods covered
by the mortgage at the time it was
given, there is no exceptionable error
IN the instructions of the presiding
judge. The entire stock in trade and
nxtures were mOrtgaged without an
inventory. The transaction was in
legal effect the sale of an entire stock
for an entire purchase price. Every
sale OF property is effected by a con-
tract between the parties, and every
true contract is the result of the mu-
tual intention and understanding of
the parties 1t would violate the ele
mentary principles of contracts and
pervert the obvious meaning of terms
to hold that one may be legally made
purchaser of intoxicating LIQUORS
without his knowledge or consent. and
nave bona fide purchase of an entire
STOCK of legitimate merchandise faint
ed with illegality by the subsequent
discovery of quantity Of intoxicat-
ing liquors which he never Intentional
~ bargained for. Such a doctrine is
SO repugnant to all considerations of
reason and justice that it appears to
nave remained without the sanction
II judicial authority. 1t is manifest
y distinguished from the rule adont-
"a IN criminal prosecutions under the
statute
Inc purchaser OF an entire stock
"lthout knowledge that it contains in
liquors does not participate
N the wrong of the seller who has
of that fact.
But even if it is assumed that tho
mortgage was rendered illegal as to |
the derendant as well as the morteag-
Or OH account of the presence of intoy.
lcat1ng liquors in stock, of which the
ne1endant was entirely ignorant and
that the instruction was technically
erroneous, it was not prejudicial to the
plaintiff. The evidence is undisputed
that both at the time the defendant
TOOK the mortgage, and at the time he |
LOOK legal possession of the goods /
Landers as one of the mortgagors
stated to him that there was no in
loAlcatlng liquors in the stock BY the |
covenants in the mortgage itself, the
also declared that they had |
good right and lawful authority to |
dispose of all the goods in the store at /
That time covered by the mortgage
The defendant testifies that he had |
no knowledge that there were intoXi-
eating liquors in the store at that time
and there is no evidence in the case
that he did have such knowledge.
relying upon the statement of Landers
that there were no Intoxicating liquors
in the stock, the defendant advanced
$500 as the consideration of the mortg.
age. In that situation the plaintiff is
debarred by the familiar principles of |
equitable estoppel from taking a con.
trary position by asserting the pres.
ence of intoxicating liquors in the stock |
at that time to the great detriment of |
the defendant.
Again assuming that there were In |
toxicating liquors in the stock to the
knowledge of both parties and that the |
whole transaction was tainted with il |
legality as to both, defendant is pro-
tected by the uniformly accepted prin.
ciple of law crystalized in the maxim
I'm pari delicto potion est conditio de-
fe ndentis.' BY virtue of this rule, the
law dos not seek to give validity to the |
transaction, but to deprive the parties
of all right to have either enforcement
of or relief from the illegal agreement. |
Groton v. Waldoboro, II Maine, 3O6
9 eye. Of Law and Proc. 546. And
where contract made in violation Of |
law has been executed. courts will no,
lend their aid to compel one party to
restore the other to the condition which |
he held before the contract. unless the
statue has made some provisions for
such purpose Andrews V. Marshall
4S Maine. 20. Briefly stated the rule
is that the law will not aid either party
to an illegal contract, but leaves the
parties where it found them. Thus
whether the jury found the contract
to be legal or illegal the plaintiff was