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or the public against fraud, imposition or deception in the sale, this fact furnishes the strongest evidence that the legis

299; Sawyer v. Smith, 109 Mass. 220, and cases cited; Benjamin on Sales, §§ 530 et seq.

"So statutes prohibiting any work on the Lord's day, except works of necessity or charity, have been construed to make entirely void any contract made in violation of their provisions. On the other hand, there are numerous cases where statutes forbid certain acts to be done, and in a sense forbid certain contracts to be made, and yet it is held that contracts made in contravention of the statutes are not void. When usurious contracts were forbidden by our laws, under a penalty of forfeiting threefold the amount of interest reserved or taken, the act of making such a contract was illegal, but the contract was not void. The imposition of the defined penalty showed that the legislature did not intend that the contract should be wholly void, as this would be imposing an added penalty. Merrill v. McIntire, 13 Gray, 157.

"In Larned v. Andrews, 106 Mass. 435; s. C., 8 Am. R. 346, it was held that the provisions of the internal revenue laws of the United States, prohibiting any person from carrying on the business of wholesale dealers in merchandise until they should have paid the special tax therein provided for, did not invalidate sales made by persons who failed to comply with the statute, or prevent them from recovering the price of the goods sold. The same point was decided in Aiken v. Blaisdell, 41 Vt. 655. "The Revised Statutes of the United States respecting national banks provide that a bank shall not

lend to any person, corporation or firm a sum exceeding one-tenth part of the capital stock actually paid in, and that national banks shall not take real estate as collateral security except for debts previously contracted; and it has been repeatedly held that contracts made in contravention of the statute are not void. Gold Mining Co. v. National Bank, 96 U.S.640; National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99; Reynolds v. Crawfordsville National Bank, 112 U. S. 405.

"Where the officers of a savings bank invest its funds in a manner forbidden by statute, such illegal action of the officers does not impair the validity of the investment. Holden v. Upton, 134 Mass. 177.

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Many other cases might be cited in which it has been held that contracts made in violation of the provisions of statutes are not void, upon the ground that the statutes are intended merely to be directory to the officers or persons to whom they are addressed, and not to be conditions precedent to the validity of contracts made in reference to them. Each statute must be judged by itself as a whole, regard being had not only to its language, but to the objects and purposes for which it was enacted. If the statute does not declare a contract made in violation of it to be void, and if it is not necessary to hold the contract void in order to accomplish the purposes of the statute, the inference is that it was intended to be directory, and not prohibitory of the contract."

lature intended to invalidate sales made in violation of the statute.1

§ 1047.. Discrimination must also be made between those cases in which the sale itself is aimed at, and those in which matters incidental or preliminary or collateral to the sale only were in the legislative mind. There is a distinction obviously between a statute forbidding a sale and a statute which imposes a penalty upon "offering for sale" or upon "carrying to sell" or "exposing for sale." If the sale itself is declared invalid, the declaration must be given effect regardless of the legislative reason; if collateral acts only are aimed at the sale may be allowed to stand. As stated by Baron Parke in a case often referred to (the italics being his), "if the contract be rendered illegal, it can make no difference in point of law whether the statute which makes it so has in view the protection of the revenue or any other object. The sole question is whether the statute means to prohibit the contract."

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1048. Repeal of statute.- Where, under the statute, the contract is void, the subsequent repeal of the statute does not give validity to the contract.1

1 Bowditch v. New England L. Ins. Co., 141 Mass. 292, 55 Am. R. 474, 4 N. E. R. 798; Miller v. Ammon, 145 U. S. 421, 36 L. ed. 759, 12 Sup. Ct. R. 884; Moog v. Hannon, 93 Ala. 503, 9 S. R. 596; Bisbee v. McAllen, 39 Minn. 143, 39 N. W. R. 299; Griffith v. Wells, 3 Denio (N. Y.), 226; Penn v. Bornman, 102 Ill. 523; Seidenbender v. Charles, 4 Serg. & R. (Pa.) 151, 8 Am. Dec. 682; McConnell v. Kitchens, 20 S. C. 430. 47 Am. R. 845; Wood v. Armstrong, 54 Ala. 150, 25 Am. R. 671.

2 A sale is not necessarily invalid because the statute imposes a ponalty for "offering for sale" goods which have not been inspected or stamped as the statute requires. The sale may have been effected without

any such "offering," and in that case is valid. Williams v. Tappan (1851), 23 N. H. 385. Followed in Brackett v. Hoyt (1854), 29 N. H. 264.

And the same is true where the statute prohibits, not the sale, but the "carrying to sell" or "exposing for sale." Jones v. Berry, (1856), 33 N. H. 209. See also Briggs v. Hunton (1895), 87 Me. 145, 32 Atl. R. 794. 3 Cope v. Rowlands, 2 M. & W. 150. 4 Woods v. Armstrong, 54 Ala. 150, 25 Am. R. 671; Banchor v. Mansel, 47 Me. 58; Gilliland v. Phillips, 1 S. C. 152; Handy v. Publishing Co., 41 Minn. 188, 42 N. W. R. 872; Roby v. West, 4 N. H. 285; Bailey v. Mogg, 4 Denio (N. Y.), 60. But see Central Bank v. Empire Stone Co., 26 Barb.

Illustrations of effect.

The reported cases

§ 1049. furnish many illustrations of the principles discussed in the preceding sections. The kind of prohibition which has given rise to most frequent litigation is the statute, now so common in every State, regulating the sale of intoxicating liquors. The language of these statutes is usually so specific as to leave little room for construction; but even though the language is not specific as to the validity of the sale, still, inasmuch as these statutes are designed for the protection of the public morals, it is quite universally held that the imposition of a penalty implies a prohibition which renders void the sale and prevents any action for its enforcement.1

§ 1050. So, upon the ground that public or private morals were to be protected, or fraud, artifice or deception in the sale prevented, it has been held that penalties inflicted implied a prohibition and rendered unenforceable the contract for the sale of goods which have not been inspected or stamped as required by law;2 or which are not of the required dimensions,

(N. Y.) 23; Washburn v. Franklin, 35 Barb. 599; Curtis v. Leavitt, 15 N. Y. 1, 85.

1 See cases cited ante, §§ 1026-1029. 2 Thus, in Richmond v. Foss (1885), 77 Me. 590, 1 Atl. R. 830, followed in Knight v. Burnham (1897), 90 Me. 294, 38 Atl. R. 168, it was held that a seller cannot recover the price of manufactured lumber sold and delivered without the official survey required by the statute. Abbott v. Goodwin, 37 Me. 203, and Rogers v. Humphrey, 39 Me. 382, were distinguished. In the earlier case of Durgin v. Dyer (1878), 68 Me. 143, the same court had held that no action could be maintained for the price of hoops sold without being culled and branded as required by statute. In the southern States the familiar statutes designed to insure the qual

ity of fertilizers have given rise to many similar decisions. Thus there can be no recovery for fertilizers sold when they had not been inspected and certified in the manner which the statute specified, and imposed a penalty for selling without. Alabama: Code 1896, § 386; Woods v. Armstrong (1875), 54 Ala. 150, 25 Am. R. 671; Campbell v. Segars (1886), 81 Ala. 259, 1 S. R. 714; Steiner v. Ray (1887), 84 Ala. 93; Clark's Cove Guano Co. v. Dowling (1887), 85 Ala. 142; Merriman v. Knox (1892), 99 Ala93; Brown v. Adair (1894), 104 Ala 652; Kirby v. Milling Co. (1894), 105 Ala. 529; Hanover Nat. Bank v. Johnson (1890), 90 Ala. 549. Georgia: Code 1895, § 611; Conley v. Sims (1883), 71 Ga. 161; Allen v. Pearce (1890), 84 Ga. 606, 10 S. E. R. 1015. Kentucky: Vanmeter v. Spurrier

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size or weight; or which have not been gauged by the specified standard, as if they have been weighed when the statute required measurement or the contrary;2 or which have not been weighed or measured by standards duly certified; or otherwise fail to conform to the statutory regulation.*

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§ 1051. And though the statute was aimed chiefly at securing revenue, yet if it also expressly or impliedly prohibits the sale, the sale cannot be enforced. But, on the other hand, under similar statutes, if the sale is not prohibited and the penalties of the statute are aimed simply at some act or omission of the seller affecting the revenue, as, for example, his omission to procure a license, it is held that the sale is valid and may be enforced, even though the seller has made himself liable to the penalty."

1893), 94 Ky. 22, 21 S. W. R. 337. South Carolina: McConnell v. Kitchens (1883), 20 S. C. 430, 47 Am. R. 845.

V.

1 Recovery cannot be had for shingles under the statutory size. Wheeler v. Russell (1821), 17 Mass. 258 [distinguished in Coombs Emery (1837), 14 Me. 404]; nor for bricks where the statute imposes a penalty for the sale of them under a given size. Law v. Hodson (1809), 11 East, 300.

2 There can be no recovery for oats and meal sold by the bag where the statute expressly requires "that the same shall be bargained for and sold by the bushel" (Eaton v. Kegan (1874), 114 Mass. 433); or for coal which has not been officially weighed as required by the statute (Libby v. Downey (1862), 5 Allen (Mass.), 299), or measured. Little v. Poole (1829), 9 B. & Cr. 192, 17 Eng. C. L. 93.

3 No recovery can be had for goods sold and weighed upon scales not adjusted, sealed or recorded as re

quired by statute. Bisbee v. Mc-
Allen (1988), 39 Minn. 143, 39 N. W.
R. 299; Finch v. Barclay (1891), 87
Ga. 393, 13 S. E. R. 566; Palmer v.
Kelleher (1873), 111 Mass. 320.

So no action lies to recover the price of milk sold by the can, at wholesale, in cans not sealed according to the statute, although the State sealer refused to seal them for the statute price. Miller v. Post (1861), 1 Allen (Mass.), 434.

4 As in Elkins v. Parkhurst (1843), 17 Vt. 105, where a tender of unsealed leather, in payment of a debt, was held bad.

5 Such was the case in Best v. Bauder (1865), 29 How. Pr. (N. Y.) 489; Ferdon v. Cunningham (1860), 20 How. Pr. 154. So where the act is contra bonos mores. Solomon v. Dreschler (1860), 4 Minn. 278.

6 As in Mandlebaum v. Gregovich, 17 Nev. 87, 28 Pac. R. 121, 45 Am. R. 433; Lindsey v. Rutherford, 17 B. Mon. (Ky.) 245; Niemeyer v. Wright, 75 Va. 239, 40 Am. R. 720; Hill v.

§ 1052. Sunday sales - Statutes forbidding.- Contracts made upon Sunday were not thereby invalid at common law. Their invalidity is the result of express statutory enactments, and the statutes must therefore be consulted in determining the nature and extent of the prohibitions they impose. Such statutes are, moreover, usually penal in their nature and receive a strict construction; courts will not be astute, certainly, in extending their prohibitions further than the language used reasonably requires. A statute which forbids work, labor or business would forbid sales; but not so of one which simply forbids "labor," or "labor" which "disturbs the peace and good order of society." So a statute which declares that no one shall "expose to sale" any wares or merchandise applies only to the public exposure of goods for sale and does not apply to mere private sales; and, if the statute forbids only the pursuit of one's "ordinary calling," a private sale by one whose business is not the sale of goods is not within the statute. Contracts of necessity or charity are usually excepted from the operation of the statute, and a sale might, under some circumstances, be deemed to fall within this exception."

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Smith, Morris (Iowa), 70; Brown v.
Duncan, 10 B. & C. 93; Johnson
v. Hudson, 11 East, 180; Larned v.
Andrews, 106 Mass. 435, 8 Am. R. 346;
Ruckman v. Bergholz, 37 N. J. L. 437;
Corning v. Abbott, 54 N. H. 469;
Aiken v. Blaisdell, 41 Vt. 655; Rahter
v. Bank, 92 Pa. St. 393; Smith v.
Mawhood, 14 M. & W. 452.

1 Arbuckle v. Reaume (1893), 96 Mich. 243, 55 N. W. R. 808; Quarles v. State (1891), 55 Ark. 10, 17 S. W. R. 269. 2 Birks v. French (1878), 21 Kan. 238. 3 Richmond v. Moore, 107 Ill. 429, 47 Am. R. 445.

4 Boynton v. Page (1835), 13 Wend. (N. Y.) 425; Eberle v. Mehrbach (1874), 55 N. Y. 682.

So, where the statute expressly forbids "public selling," private sales are not forbidden. Ward v Ward (1899), 75 Minn. 269, 77 N. W. R. 965.

So, where the statute is directed at keeping open a house or place of business. Moore v. Murdock (1864), 26 Cal. 514.

5 Hazard v. Day (1867), 14 Allen (Mass.), 487, 92 Am. Dec. 790; Clark on Contracts, 395; Swann v. Swann (1884), 21 Fed. R. 299; Bloom v. Richards (1853), 2 Ohio St. 387; Drury v. Defontaine (1808), 1 Taunt. 131; Allen v. Gardiner (1861), 7 R. I. 22; Sanders v. Johnson (1859), 29 Ga. 526.

A tender of goods previously sold, made on Sunday, is good under such a statute. Amis v. Kyle, 2 Yerg. (Tenn.) 31, 24 Am. Dec. 463.

See also Bloxsome v. Williams, 3 B. & C. 232; Rex v. Whitnash, 7 B. & C. 596; Hellanis v. Abercrombie, 15 S. C. 110; George v. George, 47 N. H. 27. 6 See Allen v. Duffie (1880), 43 Mich.

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