on a different footing.1 Thus knowledge that goods were to be used in aid of rebellion has been held to avoid their sale.17 A few authorities, which are scarcely to be reconciled with the weight of authority in this country, hold that the sale is void if made "with a view to" the illegal purpose, or with the intention of enabling the buyer to accomplish it; 18 but if the contract does not provide for such purpose, and the seller's connection with the transaction is confined to a sale of the goods, it is difficult to see how any line between mere knowledge of the purpose and conduct in aid of it can practically be drawn.

16 Hanauer v. Doane, 12 Wall. (U. S.) 342, 20 L. Ed. 439; Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132; Howell v. Stewart, 54 Mo. 400; Russell v. Post, 138 U. S. 425, 11 Sup. Ct. 353, 34 L. Ed. 1009.

17 Hanauer v. Doane, 12 Wall. (U. S.) 342, 20 L. Ed. 439; Tatum v. Kelley, 25 Ark. 209, 94 Am. Dec. 717. By the common law, sales to an alien enemy are void. Brandon v. Nesbitt, 6 Term R. 23; Potts v. Bell, 8 Term R. 548; U. S. v. Lapene, 17 Wall. (U. S.) 601, 21 L. Ed. 693; Bank of New Orleans v. Mathews, 49 N. Y. 12.

18 Webster v. Munger, 8 Gray (Mass.) 584; Graves v. Johnson, 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834, 32 Am. St. Rep. 446; Davis v. Bronson, 6 Iowa, 410. "When a sale of intoxicating liquors in another state has just so much greater approximation to a breach of the Massachusetts law as is implied in the statement that it is made with a view to such a breach, it is void. Webster v. Munger, 8 Gray (Mass.) 584; Orcutt v. Nelson, 1 Gray (Mass.) 536, 541; Hubbell v. Flint, 13 Gray (Mass.) 277, 279; Adams v. Coulliard, 102 Mass. 167, 172, 173. * * If the sale would not have been made but for the seller's desire to induce an unlawful sale in Maine, it would be an unlawful sale. We assume that the sale would have taken place whatever the buyer had been expected to do with the goods. The question is whether the sale is saved by the fact that the intent mentioned was not the controlling inducement to it. If the sale is made with the desire to help him (the buyer) to his end, although primarily made for money. the seller cannot complain if the illegal consequence is attributed to him. If the buyer knows that the seller while aware of his intent is indifferent to it, or disapproves of it, it may be doubtful whether the connection is sufficient. It appears to us not unreasonable to draw the line as was drawn in Webster v. Munger, 8 Gray (Mass.) 584, and to say that when the illegal intent of the buyer is not only known to the seller, but encouraged by the sale, as just explained, the sale is void." Graves v. Johnson, supra, per Holmes, J. See, also, Wasserboehr v. Morgan, 168 Mass. 291, 47 N. E. 126.

*

SALES PROHIBITED BY STATUTE.

65. Among statutes prohibiting sales the following are the most important:

(a) Statutes regulating the conduct of trades in certain commodities, or requiring a license of persons engaged in certain kinds of business, and, by implication, prohibiting sales where the statutory provisions have not been complied with.

(b) Statutes prohibiting absolutely or conditionally the sale of intoxicating liquors.

(c) Statutes prohibiting sales on Sunday. (d) Statutes prohibiting wagers. This subdivision includes statutes prohibiting the selling of goods for future delivery, where the parties intend, not an actual delivery, but a settlement by paying the difference between the market and the contract price.

Where contracts are prohibited by statute, the prohibition is sometimes express and sometimes implied, and in either case the agreement cannot be enforced. The usual way by which contracts are prohibited by implication is by the imposition of a penalty. Some cases hold that, whenever a statute imposes a penalty for an act or omission, it impliedly prohibits the same; 19 but, by the weight of authority, the imposition of a penalty is only prima facie evidence of the intention to prohibit. The intention of the legislature will always govern, and the court will look to the language and subject-matter of the act and to the evil which it seeks to prevent.20 A consideration which receives great weight is whether the object of the penalty is protection to the public as well as revenue; for, if the penalty is designed to further the interests of public policy, it

19 Miller v. Post, 1 Allen (Mass.) 434; Pray v. Burbank, 10 N. H. 377; Hallett v. Novion, 14 Johns. (N. Y.) 273; Durgin v. Dyer, 68 Me. 143; Bancroft v. Dumas, 21 Vt. 456; Mitchell v. Smith, 1 Bin. (Pa.) 110, 2 Am. Dec. 417; Bacon v. Lee, 4 Iowa, 490.

20 Cope v. Rowlands, 2 Mees. & W. 149; Miller v. Ammon, 145 U. S. 421, 426, 12 Sup. Ct. 884, 36 L. Ed. 759; Harris v. Runnels, 12 How. (U. S.) 79, 84, 13 L. Ed. 901; Bowditch v. Insurance Co., 141 Mass. 292, 295, 4 N. E. 798, 55 Am. Rep. 474; Pangborn v. Westlake, 36 Iowa, 546; Niemeyer v. Wright, 75 Va. 239, 40 Am. Rep. 720; Clark, Cont. (2d Ed.) 260.

amounts to a prohibition; 21 but, if it is designed solely for revenue purposes, the contract is not necessarily prohibited.22 A second consideration, which sometimes receives weight, is whether the penalty is recurrent upon every breach of the provisions of the statute, for, if it is recurrent, the inference is that the penalty amounts to a prohibition.""

Statutes Regulating Trade.

There are numerous statutes enacted for the purpose of protecting the public in business dealings, which generally impose a penalty for noncompliance with their provisions, and which are construed as prohibiting sales on the part of dealers who have failed to comply with them. Among these statutes may be mentioned statutes requiring dealers to have their weights, measures, or scales approved or sealed; 24 statutes requiring goods to be marked in a particular way,25 or to be inspected, 26 or to conform to a certain weight or to certain dimensions, or to be officially weighed or measured,28 or to be

27

21 Cope v. Rowlands, 2 Mees. & W. 149; Cundell v. Dawson, 4 C. B. 376; Griffith v. Wells, 3 Denio (N. Y.) 226; Seidenbender v. Charles, 4 Serg. & R. (Pa.) 150; Penn v. Bornman, 102 Ill. 523; Bisbee v. McAllen, 39 Minn. 143, 39 N. W. 299; Clark, Cont. (2d Ed.) 261.

22 Brown v. Duncan, 10 Barn. & C. 93; Larned v. Andrews, 106 Mass. 435, 8 Am. Rep. 346; Corning v. Abbott, 54 N. H. 469; Aiken v. Blaisdell, 41 Vt. 655; Ruckman v. Bergholz, 37 N. J. Law, 437; Rahter v. Bank, 92 Pa. 393; Mandlebaum v. Gregovich, 17 Nev. 87, 28 Pac. 121, 45 Am. Rep. 433.

23 Ritchie v. Smith, 6 C. B. 462; Benj. Sales, § 538.

24 Miller v. Post, 1 Allen (Mass.) 434; Bisbee v. McAllen, 39 Minn. 143, 39 N. W. 299; Finch v. Barclay, 87 Ga. 393, 13 S. E. 566. See, generally, as to statutes regulating a trade or business, Clark, Cont. (2d Ed.) 263.

25 Forster v. Taylor, 5 Barn. & Adol. 887; McConnell v. Kitchens, 20 S. C. 430, 47 Am. Rep. 845.

26 Requiring fertilizers to be inspected or labeled. McConnell v. Kitchens, 20 S. C. 430, 47 Am. Rep. 845; Conley v. Sims, 71 Ga. 161; Baker v. Burton (C. C.) 31 Fed. 401; Williams v. Barfield (C. C.) 31 Fed. 398; Campbell v. Segars, 81 Ala. 259, 1 South. 714. But see Niemeyer v. Wright, 75 Va. 239, 40 Am. Rep. 720.

27 Law v. Hodson, 11 East, 300; Wheeler v. Russell, 17 Mass. 258. 28 Pray v. Burbank, 10 N. H. 377; Libby v. Downey, 5 Allen (Mass.) 299.

29 and

sold by weight and not by measure, or vice versa; statutes requiring dealers to take out a license.30 The effect of noncompliance by the seller with such statutes is to preclude him from recovering the price.

Statutes Regulating Sale of Intoxicating Liquor.

Where a statute prohibits the sale of liquor absolutely, a contract of sale is, of course, invalid. But, whether absolutely prohibitory or not, such statutes are construed as intended, not merely for revenue, but to diminish the evils of intemperance. Therefore, where the statute simply imposes a penalty for selling without license, the sale is void.31

Statutes Prohibiting Sunday Sales.

32

At common law, sales, like other contracts entered into on Sunday, are valid. In later times, however, statutes have been passed in England, and in most of the states, prohibiting certain acts on Sunday, and whether sales are included in the prohibition depends upon the terms of the particular act. Where the statute prohibits the making of contracts, sales are, of course, included. And sales are included where the prohibition is against labor, work, and business, since the making of contracts is secular business; 33 but they are not included if the

29 Eaton v. Kegan, 114 Mass. 433.

30 Cope v. Rowlands, 2 Mees. & W. 149; Johnson v. Hulings, 103 Pa. 498, 49 Am. Rep. 131; Buckley v. Humason, 50 Minn. 195, 52 N. W. 385, 16 L. R. A. 423, 36 Am. St. Rep. 637.

31 Griffith v. Wells, 3 Denio (N. Y.) 226; Aiken v. Blaisdell, 41 Vt. 655; Lewis v. Welch, 14 N. H. 294; Cobb v. Billings, 23 Me. 470; Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605; O'Bryan v. Fitzpatrick, 48 Ark. 487, 3 S. W. 527; Bach v. Smith, 2 Wash T. 145, 3 Pac. 831. And see Clark, Cont. (2d Ed.) 265. 32 Drury v. Defontaine, 1 Taunt. 131; Richardson v. Goddard, 23 How. (U. S.) 29, 42, 16 L. Ed. 412; Adams v. Gay, 19 Vt. 358; Bloom v. Richards, 2 Ohio St. 387; Richmond v. Moore, 107 Ill. 429, 47 Am. Rep. 445; Brown v. Browning, 15 R. I. 423, 7 Atl. 403, 2 Am. St. Rep. 908.

33 Pattee v. Greely, 13 Metc. (Mass.) 284; Northrup v. Foot, 14 Wend. (N. Y.) 249; Towle v. Larrabee, 26 Me. 464; Varney v. French, 19 N. H. 233; Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252; Troewert v. Decker, 51 Wis. 46, 8 N. W. 26, 37 Am. Rep. 808; Durant v. Rhener, 26 Minn. 3C2, 4 N. W. 610; Clark, Cont. (2d Ed.)

prohibition is merely against labor. Again, if the prohibition is confined to labor, work, or business of a man's "ordinary calling," a sale not in the exercise of such calling is valid.35 If the law prohibits exposure of merchandise for sale, the prohibition extends only to public sales."

Same-Ratification of Sunday Sale.

Whether a Sunday sale is capable of ratification is a question on which there is much conflict of authority. A leading case on the point is Williams v. Paul, in which there was a subsequent promise to pay for the goods, on the strength of which it was held that an action could be maintained; but this decision was questioned by Parke, B.,38 on the ground that the contract was incapable of ratification, and that the property in the goods having passed by delivery, the promise to pay for them was without consideration. If it is correct to say that the property passes in such case, this criticism appears to be unanswerable; but there is some authority to the effect that the property does not pass, and that, if the goods have not been. paid for, the seller can maintain replevin or trover,39 in which case sufficient consideration for the new promise may be found. In this country the cases are in direct conflict, some holding that a Sunday contract can be ratified *° and others holding that

84 Richmond v. Moore, 107 Ill. 429, 47 Am. Rep. 445; Birks v. French, 21 Kan. 238. Contra, Reynolds v. Stevenson, 4 Ind. 619.

35 Drury v. Defontaine, 1 Taunt. 131; Bloxsome v. Williams, 3 Barn. & C. 232; Scarfe v. Morgan, 4 Mees. & W. 270; Allen v. Gardiner, 7 R. I. 22; Hazard v. Day, 14 Allen (Mass.) 487, 92 Am. Dec. 790; Swann v. Swann (C. C.) 21 Fed. 299; Amis v. Kyle, 2 Yerg. (Tenn.) 31, 24 Am. Dec. 463; Sanders v. Johnson, 29 Ga. 526; Mills v. Williams, 16 S. C. 593; Clark, Cont. (2d Ed.) 266. But see Fennell v. Ridler, 5 Barn. & C. 406; Smith v. Sparrow, 4 Bing. 84.

36 Boynton v. Page, 13 Wend. (N. Y.) 425; Batsford v. Every, 44 Barb. (N. Y.) 618; Ward v. Ward, 75 Minn. 269, 77 N. W. 965. See, also, Holden v. O'Brien, 86 Minn. 297, 90 N. W. 531; State v. Weiss, 97 Minn. 125, 105 N. W. 1127; Clark, Cont. (2d Ed.) 267.

376 Bing. 653.

38 Simpson v. Nicholls, 3 Mees. & W. 244, as corrected 5 Mees. & W. 702.

39 Post, p. 221.

40 Adams v. Gay, 19 Vt. 360; Flinn v. St. John, 51 Vt. 334, 345; Sayles v. Wellman, 10 R. I. 465; Banks v. Werts, 13 Ind. 203; Tucker