Orcutt v. Symonds

107 Mass. 382

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1871
• Status: Published

Opinion

Ames, J.

The purchaser of intoxicating liquors sold in violation of law is not in pari delicto with the seller. The money paid by the purchaser to the seller is declared by the statute to be held as received without consideration and against law, equity and good conscience. Gen. Sts. c. 86, § 61. It remained therefore the property of the purchaser, and might be recovered back as such. Walan v. Kerby, 99 Mass. 1. Adams v. Goodnow, 101 Mass. 81.

It makes no difference that the plaintiff gave his promissory notes for the price. When he paid these notes, he paid the price of the intoxicating liquors, partly to the defendant personally, and partly on his account and in such a manner that the defendant had the benefit of the payment. It does not change the true character of the transaction, that the defendant, by discounting some of the notes at a bank, was able to anticipate their payment. When they matured and were paid, he was relieved of his contingent liability as indorser, and the payment operated to his benefit. The ruling therefore that, to the extent of the amount actually received by the defendant, such payment should be considered as “ in substance and effect ” a payment by the plaintiff to the defendant, was correct.

Exceptions overruled,