Seavey v. Walker, 108 Ind. 78. (Statute.) Steele v. Benham, 84 N. Y. 634. (Statute.) Williams v. Porter, 41 Wis. 422. (Statute.) (3) Such retention is neither conclusive nor prima facie fraud, as a matter of law, but it is for the jury to consider with the other evidence, in order to determine whether or not there was fraud as a matter of fact. Carpenter v. Graham, 42 Mich. 191. See also 91 Mich. 328. § 120. Delivery Sufficient to Pass Title against Cred itors: Since the doctrines in the foregoing cases as to fraud against creditors are based upon the fact of the retention (or the non-delivery) of the goods by the vendor, it is important to determine what will constitute a sufficient delivery in such cases in order to pass, against creditors, the title. As we shall see further on, under the general consideration of DELIVERY, the term has a different meaning in different circumstances, and a "delivery" sufficient for one legal purpose might not suffice for another. As regards delivery sufficient to pass title against creditors, the circumstances of each case must govern. If, from their character, the goods are incapable of manual delivery, then a constructive or symbolic delivery will be sufficient. Some courts, influenced by their general attitude upon the presumptions of fraud in cases of retention, hold that the vendor cannot retain possession as bailee for the vendee, while others hold that if the vendor be bailee, in good faith, then delivery sufficient to pass title has been made. The acts of the parties concerned are also evidence of the delivery, such, for example, as branding cattle, changing signs at a shop where a stock of goods is sold, or any other open acts indicative of ownership on the part of the vendee. The following cases will more fully illus trate these principles: Morton v. Ragan, 5 Bush, 335. (Crops in the field.) Evans v. Scott, 89 Pa. St. 136. (The last three cases hold that vendor may act as bailee for vendee.) Ruddle v. Givens (Cal.), 18 Pac. R. 421. (Contra to preceding.) Hull v. Sigsworth, 48 Conn. 258. 3. ILLEGAL SALES. § 121. The third division in the discussion of the "Avoidance of the Contract" is that of sales which are void on the ground of their illegality, either by force of the common law or by statute. The effect of illegal sales is that if the contract be executory, neither party can enforce by legal action its terms. If it be executed by both parties, neither party can obtain redress; the law leaves the parties where they are. If, however, a contract of sale has been entered into for some illegal purpose, and if the vendee has paid, partly or wholly, for the goods, or the vendor has made partial or complete delivery of them, then such performing party, before the illegal purpose has been carried out, and upon disaffirmance of the contract upon the ground of its illegal object, may recover the money paid, or the goods delivered. This rule presupposes, of course, that the sale itself was not illegal, per se, but only in its ulterior purpose. The doctrine regarding the non-enforcement of illegal sales is based upon the theory of impossibility, since it becomes impossible by law. This principle also applies to sales that were legal when entered into, but which, before execution, have become illegal by statute. Presby. Church v. City of N. Y., 5 Cow. 538. (Sale of land.) Materne v. Horwitz, 101 N. Y. 469. Penn v. Bornman, 102 Ill. 523. Pike v. King, 16 Iowa, 49. Chestnut v. Harbaugh, 78 Pa. St. 473. Congress & Empire Spring Co. v. Knowlton, 103 U. S. 49. Adams Exp. Co. v. Reno, 48 Mo. 264. Taylor v. Bowers, 1 Q. B. D. 291. § 122. Sales Illegal at Common Law: Sales of things that violate public decency and morality, such as sales for the purposes of prostitution, obscene books, pictures, representations, etc.; sales of poisons or drugs for effecting some criminal design; sales of any articles for the perpetration of crime, or for the accomplishment of some illegal purpose, the vendor participating in the intent; sales of public office or of official influence; sales of recommendations, whereby the vendor as a presumably disinterested person is to recommend the vendee; sales to the public enemy,-are, in general, absolutely void at the common law Some sales are illegal, therefore, on account of the consideration, others on account of the party, e. g., a public enemy, and still others because the thing, although innocent in itself, and under other circumstances the subject of a valid sale, is to be used for some illegal purpose. Mitchell v. Scott, 62 N. H. 596. Filson v. Himes, 5 Pa. St. 452. Hanauer v. Doane, 12 Wall, 342, Ashley v. Dillon, 19 Mo. 619. (Bribery.) Marshall v. Railroad Co., 16 How. 314. (Lobbying.) Creekmore v. Chitwood, 7 Bush, 317. (Smuggled goods.) |