Durgin v. Dyer

68 Me. 143, 1878 Me. LEXIS 47

• Court: Supreme Judicial Court of Maine
• Decided: April 3, 1878
• Status: Published

Opinion

Yirghn, J.

The rule is well established that contracts for the sale of chattels entered into in contravention of the terms and policy of a statute, cannot be enforced; and it is immaterial whether the sale is expressly prohibited, or a penalty imposed therefor, because the imposition of a penalty in such case implies a prohibition. Cundell v. Dawson, 4 C. B. 376, 399. Buxton v. Hamblen, 32 Maine, 448. Foye v. Southard, 54 Maine, 147. S. C. 64 Maine, 389. Miller v. Post, 1 Allen 434. Libbey v. Downey, 5 Allen, 299

By R. S., c. 41, § 21, no person shall deliver on sale any hoops, before- they have been culled and branded by the proper officer, and a certificate thereof given by him specifying the number, quality and quantity thereof, under a penalty of two dollars a thousand.

It is admitted that the hoops in question were sold and delivered without any compliance with the foregoing provisions of the statute. The sale was, therefore, in plain contravention of its salutary provisions and cannot be enforced.

The decision in Abbott v. Goodwin, 37 Maine, 203, is not inconsistent with the rule adopted in the case at bar. The language of the statute then before the court was materially different from the one now construed; and that, decision will- be confined to the facts there found. Exceptions sustained.

Appleton, O. J., Walton, Barrows, Peters and Libbey, JJ., concurred.