Gallick v. Castiglione

DOOLING, J., pro tem.

This is an appeal from a judgment against defendants for the price of certain merchandise sold and delivered to them. The materials were sold prior to the repeal of the eighteenth amendment to the United States Constitution and appellants defended the action on the theory that the contract of sale was illegal. Specifically defendants alleged in their answer that said materials were sold “for the express purpose of manufacturing intoxicating liquor”; that the seller knew that they were to be used for that purpose “and actively cooperated with defendants herein in properly utilizing said goods, wares and merchandise for said purpose”; and that the seller “directed said defendants in the proper manner in which to use said goods, wares and merchandise for the purpose of distilling intoxicating liquor therefrom”. The court found against this defense and appellants claim that this finding is not supported by the evidence.

The general rule applicable to such cases is thus stated in

California Raisin Growers’ Assn.

v.

Abbott,

160 Cal. 601, 609 [117 Pac. 767], quoting from

Tracy

v.

Talmage,

14 N. T. 176 [67 Am. Dee. 132] :

“ ‘I consider it, therefore, as entirely settled by the authorities to which I have referred, that it is no defense to an action brought to recover the price of goods sold, that the vendor knew that they were bought for an illegal purpose, provided it is not made a part of the contract that they shall be used for that purpose; and, provided, also,

[718]

that the vendor has done nothing in aid or furtherance of the unlawful design. ’ ”

We may take it as proved in this case that the seller knew that appellants were buying the goods for the purpose of manufacturing intoxicating liquor. It seems equally clear that it was not made a part of the contract that they should be used for that purpose. The contract was a contract of outright sale and what appellants did with the goods was no concern of the seller, nor did appellants undertake by their contract to bind themselves to manufacture intoxicating liquor with them. The only question on this phase of the case is whether the evidence was such as to compel a finding that the seller did something in aid or furtherance of the unlawful design. If the evidence is open to two inferences, one of which will support the finding of the trial court, this court is foreclosed by the finding, even though from the same evidence we might have drawn the other inference had we been the triers of fact.