Appeal from Sixth Judicial District Court, Humboldt County; Edward A. Ducker, Judge.
Salter & Robins, for Appellant.
R. M. Hardy, for Respondent.
By the Court, Coleman, J.:
This is an appeal from an order denying a motion for a new trial.
The judgment in this case is in favor of respondent, who was the plaintiff in the trial court, and is based upon an action to recover judgment upon a certain promissory note executed by appellant. For defense to the cause of action mentioned, the answer alleged that the note described in the complaint was given to cover a balance of an indebtedness due plaintiff for liquors sold and delivered by him to defendant, who was engaged in conducting a house of ill-fame within the restricted distance from a church edifice which was used for religious worship, knowing that said liquors would be resold by the defendant upon said premises to the inmates of said house of ill-fame and the visitors thereto in order to encourage patronage of said house, that the same might be made more profitable.
Appellant contends that, since a contract which is founded upon an immoral or illegal consideration is void,
and since it is against the law of Nevada to conduct a house of ill-fame within a certain distance of a church edifice which is used for religious worship, as did appellant, and since the sale of the liquors mentioned encouraged such violation of the law by appellant, there is no valid consideration for the note sued upon, and hence the order refusing to grant defendant a new trial was error.
1, 2. It is the general rule of law that where goods are sold for the express purpose of enabling the buyer to accomplish an unlawful or immoral purpose, there can be no recovery for the price of the goods sold; but where the vendor merely has knowledge that the purchaser intends to use the goods for an immoral or illegal purpose, and does nothing to aid in carrying out the immoral or illegal purpose, the vendor is entitled to recover. We quote from Cyc. as follows:
It is held in England that, where the agreement is innocent in itself, but the intention is unlawful, as where goods are bought or money borrowed to be used for an unlawful purpose, the mere fact that the other party knows of such purpose renders the agreement illegal and void. * * * In the United States, while some courts have followed the English rule, most of the courts have taken a different view, and have held that mere knowledge of the seller of goods or services that the buyer intends an illegal use of them is no defense to an action for the price of for rent. (9 Cyc. 571, 572.)
A question which is apparently involved in some obscurity is whether a contract is rendered illegal by the fact that one party knows of the other's intention to further an illegal purpose by means of the contract, as, for instance, to use the subject-matter thereof for an unlawful purpose. That there is some difference of opinion on the subject there would seem to be no doubt. From some decisions the rule is deducible that knowledge of the other party's illegal object may, at least under some circumstances indicate an intention to aid the
unlawful object or constitute participation in an unlawful act. However, in a majority of the decisions dealing with particular contracts, mere knowledge by one of the parties of the other's intention to use the subject-matter for an unlawful purpose has been ...