Williams v. Tappan

23 N.H. 385

Opinion

Bell, J.

The general principle, that the validity of all contracts, including contracts of sale, is to be-determined by the law of the place of contract,(is every where admitted. Certain descriptions of contracts are prohibited either by common law or statute, and in express terms declared to be illegal, or forbidden to be made. As to such there can be no question. Certain others are not in terms prohibited, or declared illegal or void, but penalties are imposed upon one or both the parties to the contract; and in relation to this class, it has been uniformly held, that the imposition of a penalty implies a prohibition of the act, the doing of which is so punished. Roby v. West, 4 N. H. Rep., 285 ; Gray v. Burbank, 10 N. H. Rep., 377.

The inspection laws of other States, though they may operate unfavorably to our interests, have never been made an exception to the general rule ; and contracts, which are either expressly or by implication forbidden by those laws, will be holden illegal. The principles to be applied to the construction of penal statutes, are not in any doubt. All statutes, whether penal or remedial, áre to be so construed as to carry into effect the intentions of the legislature. Fairbanks v. Antrim, 2 N. H. Rep., 105. A penal statute is to be construed strictly; and the courts will not reject any word in it, for the purpose of giving it a broader construction, but they are bound to construe it according to the obvious meaning of the words taken together. Woodbury v. Thompson, 3 N. H. Rep., 194. The construction is not to be narrowed, but effect is to be given to the plain meaning of the words; and when they are doubtful, that sense is to be adopted, which best harmonizes with the context, and the apparent policy and objects of the legislature. Pike v. Jenkins, 12 N. H. Rep., 155.

The first question in this case is: Does the statute of Massachusetts render the sale, on which the action is founded, illegal ? If the sale is prohibited, it is because a penalty is imposed upon one or both the parties to it. It is said, there can be no difference between a pecuniary penalty and a forfeiture of the article, which is the subject of the transaction; and we think it quite as reasonable to imply a prohibition from the one as the other.

The case recites the statute of Massachusetts. Shingles are-required to be of certain dimensions, and to be free of certain defects; and they are required to be surveyed and branded, i£ before they are sent from the town where they are made, or- at tbe place of first sale before their delivery.” Then comes the penal clause. “ All shingles offered for sale without being surveyed and marked as aforesaid, shall be forfeited to the use of the town, where they shall be so offered for sale.” Shingles unsurveyed and unmarked as aforesaid, if offered for sale, are forfeited. In terms, the statute does not forbid the sale of such shingles, neither is a prohibition of a sale to be inferred, because a penalty is imposed upon such sale, or either of the parties to it. The implied prohibition is not upon the sale, but upon the offer to sell. These things are not the same. But the argument of the defendant is, that since a forfeiture of the shingles is affixed to the offer of them for sale, and every sale, as he contends, necessarily implies an offer to sell, the offer to sell being impliedly forbidden under a penalty, the sale is necessarily forbidden, because it cannot be made without the prohibited offer. A penalty may be incurred by an offer to sell, where no sale is in fact made. But it is not clear, that an offer to sell is so necessarily implied in a sale, that the prohibition to offer is of ■course a prohibition to sell. If an offer to sell is not necessarily implied in an actual sale, the whole argument of the defendant falls to the ground. Now as we understand the nature of a sale, an offer to trade, an offer to contract, is necessarily implied in every sale; but that offer may be either an offer by the seller, or by the buyer; an offer to purchase, or an offer to sell. The offer to sell is prohibited, for reasons no doubt satisfactory to the legislature, and into which it is no part of the duty of courts to.inquire. The offer to buy is not prohibited, for the obvious reason, that a forfeiture of one mail’s property could not, with any shadow of justice, be made to depend upon the act of another person. The mischief designed to be guarded against by the statute, was the offering for sale of merchandize which had not been duly inspected and marked. If no such offer is made, no statute is violated and no penalty is incurred. The position then on which the defendant relies, that every sale implies an offer to sell, is untrue in fact and his conclusions must fall. He relies upon a dictum in Commonwealth v. Eaton, 15 Pick., 273, that every sale, ex vi termini, includes an offer to sell. We think otherwise. A sale may include an offer to sell, and on that ground an indictment for offering to sell and selling is well enough, because the court will understand them as parts of one transaction and the offer as included in the sale, but it was not necessary in that case to hold, that a sale always implied an offer to sell, and the opinion in this respect was entirely extrajudicial.

From the fair and obvious meaning of the language of the statute, beyond which it is not to be strained by construction, we cannot infer, that the legislature intended to prohibit such sales. A very slight change in the language would have made it clearly express what they are thus supposed to mean; and it is but just to them to suppose they intended just what they said and no moró. This conclusion is strengthened by the case in Massachusetts, to which our attention is called. Wheeler v. Russell, 17 Mass. 258. That case arose upon the statute of 1788, ch. 15, of which the section of the Revised Statutes here relied upon is a revision, but with modifications which we cannot but regard as very essential. By that statute, the sale of shingles not of the statute dimensions and qualities, and of shingles not surveyed, of whatever dimensions or description, was in terms prohibited ; and if shingles were sold without being surveyed, loth seller and luyer were made liable to a pecuniary penalty. Under that statute, it is too clear to be questioned, that no action would lie for the price of shingles sold in violation of the express terms of the law, as well as of the implied prohibition resulting from the penalty inflicted upon both parties to the sale. By the revision, the express prohibition of sales and the penalty upon the buyer and seller are repealed; while the forfeiture upon the offer to sell was retained. If the legislature intended to continue the prohibition of such sales, why was the statute altered in these respects ? It would be too idle to suppose, they could have intended to leave a point of this kind to implication, while they were striking out brief and apt words for the purpose they are supposed still to retain. This case then is clearly without authority in favor of the defendant, as to the point here involved, while we think, it bears with great force against the construction he attempts to rest on implication from that part of the original statute which is retained in the revision. As it is clear, that an offer to sell, in the case specified in this statute, is prohibited and illegal, and that an entire transaction, a part of which is illegal, is altogother illegal, it follows that wherever it appears that an illegal offer to sell is a part of a contract of sale, it will render the whole illegal; but this is the essential fact to be proved, in order to avoid the sale. It is not to be inferred from the mere fact of a sale, because the seller may have merely accepted an offer of a third person tD purchase an article which he had no previous thought of selling, or wish to sell; and it is absurd to talk of an acceptance as an offer. They are as essentially distinct as a question and an answer. An offer implies something to be done or proposed on the other side; an acceptance of an offer to buy, closes a contract and leaves nothing to be done. In this case there is no evidence that any offer to sell was made by the plaintiff, or that any illegal transaction constituted a part of the sale.

The ruling of the court was correct, in relation to the admissibility of the notice or brief statement. It was a Shatter of defence, arising after action brought and therefore not admissible under the general issue. If it was admissible, the notice was superfluous. By the general rules, special pleas and brief statements of matters requiring a special plea at common law must be filed within ninety days after the first term. The court may however permit them to be filed afterwards, on payment of costs. No such leave was granted, because the defendant did not choose to submit to the terms the rules impose, and therefore did not ask it.

The defendant tendered to the plaintiff’s attorney a sum in full of his claim, less than the amount demanded; the attorney accepted it, but not in full. It is of this payment, (for a tender accepted is a payment,) that the defendant desires to avail himself under the general issue. Under the general issue, the party may avail himself of any payment made pendente lite, in reduction of the damages; but as such payment is an admission that the action was brought for good cause, it cannot avail under the general issue as a bar to the action. If the defendant would avail himself of it as a bar, he must plead it in bar of the further maintenance of the action, or give notice to the same effect by a brief statement filed in conformity to the rules on that subject. Bailey v. March, 2 N. H. Rep., 522; Pemigewassett Bank v. Brackett, 4 N. H. Rep., 557.

Judgment on the Verdict.