intent to make an unlawful use of the goods will vitiate the contract, and those in which it will not, may be difficult. Perhaps it cannot be done by exact definitions. The whole doctrine of avoiding contracts for illegality and immorality is founded on public policy. It is certainly contrary to public policy to give the aid of the courts to a vendor who knew that his goods were purchased, or to a lender who knew that his money was borrowed for the purpose of being employed in the commission of a criminal act, injurious to society or to any of its members."

§ 1017.

Degree of participation required to invalidate. As stated in the preceding section, mere knowledge of the unlawful purpose is not, according to the weight of authority in the United States, enough to invalidate the sale, but there must be such participation by the seller in the buyer's purpose as can fairly be said to actively aid and further it. Just what shall be the nature and degree of such participation in any given case it is impossible to define by any more precise and certain rule, as each case must be determined by its own peculiar circumstances.

§ 1018.. As knowledge of the unlawful purpose is not here enough, anything less than knowledge is manifestly insufficient. Reasonable ground for belief, or facts sufficient to put the seller upon inquiry, or even his actual belief, will not suffice. The cases which have required least have not charged the seller with complicity upon anything less than actual knowledge.

§ 1019.. Passing beyond actual knowledge, any active aid or participation in the execution of the buyer's purpose will, as has been said above, invalidate the sale. Thus, where

1 Finch v. Mansfield (1867), 97 Mass. 89; Lindsey v. Stone (1877), 123 Mass. 332; Corning v. Abbott (1874), 54 N. H. 469. Under a later statute see Dunbar v. Locke (1883), 62 N. H. 442. See also Graves v. Johnson

(1892), 156 Mass. 211, 30 N. E. R. 818, 32 Am. St. R. 446, 15 L. R. A. 834, and exhaustive notes in each series where this general subject is discussed.

2 Sale, with a view to illegal resale,

the seller knowingly made the sale ostensibly to a third person for the purpose of aiding the real buyer in evading the provisions of the liquor law, it was held that he had so co-operated in the buyer's purpose as to be a party to it; and the same result was reached where he purposely and as part of the contract packed the goods in such form as would enable the buyer most easily to evade the law; 2 and also where he put them up in a disguised form in order to enable the buyer to escape detection, even though he did this voluntarily and not in pur

suance of a condition of the sale. And in a very recent case of a conditional contract to sell property known by the seller to be intended for immoral uses, the seller retaining the title and the power to take possession upon default or whenever he deemed himself insecure, the court declared that it was difficult to conceive why he did not thereby aid and participate in the unlawful purpose.2

2

Turning from general rules to specific instances, a number of the forms in which the question has arisen may be reviewed by way of illustration.

1020. Sales in furtherance of social vices.-The sale of goods to prostitutes which might or might not be of aid to them in carrying on their immoral calling has given rise to no little judicial discussion. In an early English case, where the woman was sued for the price of clothing furnished her, and pleaded in defense that the plaintiff knew her character, and that the clothing was for the purpose of enabling her to pursue her calling, Lord Ellenborough said that it must not only be shown that these things were known to the plaintiff, "but that he expected to be paid from the profits of the defendant's prostitution, and that he sold the clothes to enable her to carry it on, so that he might appear to have done something in furtherance of it."

§ 1021. English rule. In a later case, which has been relied upon as showing a change in the view of the English judges, the action was brought by a coach-builder to recover the price of an ornamental brougham sold to a prostitute. The jury found that the plaintiff knew her character, and that the brougham was to be used by her as part of her display to attract men. It was held that there could be no recovery. The

1 Aiken v. Blaisdell (1869), 41 Vt. 655. Here liquor sold was shipped marked as "benzine" or "cider vinegar;" kegs were packed in barrels or boxes, or concealed in sacks.

2 Standard Furniture Co. v. Van

Alstine (1900), 22 Wash. 670, 62 Pac.
R. 145.

3 Bowry v. Bennet (1803), 1 Camp.

348.

4 Pearce v. Brooks (1866), L. R. 1 Exch. 213.

learned judges took occasion to explain that what had fallen from Lord Ellenborough in reference to the necessity of the plaintiff's expectation to be paid from the profits of the defendant's calling was used by way of illustration merely and was not an essential ingredient in the case; and it is impossible to read the opinions of the judges without being brought to the conclusion that that which was most cogent to their minds was not the mere knowledge of the intended unlawful use, but that the plaintiff had participated in her intention.

$ 1022. In the United States it has been held that a furniture dealer who sold furniture to a prostitute could recover its price, although he knew her character and business. "It is not thence to be inferred," said the court, "that he encouraged her in continuing in her immoral course of life. That he contributed to enable her to continue it by selling her the furniture is too vague, hypothetical and remote to form an impediment to his recovery on the contract." So it has been held that one who sells beer to such a woman, which he supposed was to be used or sold at her place of business, may recover for its price. A contract for the sale of a house is not illegal, although the seller knows that the buyer expects to use it as a house of prostitution; but a lease of a house is illegal if the lessor knows and intends that the house will or may be so used; and so is

3

1 Hubbard v. Moore (1872), 24 La. Ann. 591, 13 Am. R. 128. This case was followed in 1874 by Mahood v. Tealza, 26 La. Ann. 108, 21 Am. R. 546 (though it is questionable, at least, whether the latter case was rightly decided, the facts being that both plaintiff and defendant were prostitutes, and that the furniture was sold by one to the other "with the express knowledge and purpose of both" that it was to be used in keeping a house of ill-fame), and by Sampson v. Townsend, 25 La. Ann. 78. 2 Anheuser-Busch Brewing Ass'n v. Mason (1890), 44 Minn. 318, 20 Am.

St. R. 580, 9 L. R. A. 506, 46 N. W. R. 558. So a sale of cigars is not illegal because the seller knows that the purchaser will dispose of them in furtherance of his illegal traffic in intoxicating liquors. Delavina v. Hill (1889), 65 N. H. 94, 19 Atl. R. 1000.

Sprague v. Rooney (1884), 82 Mo. 493, 52 Am. R. 383. So of a contract for work and labor upon such a house. Bishop v. Honey, 34 Tex. 245.

4 Ernst v. Crosby (1893), 140 N. Y. 364, 35 N. E. R. 603; Girarday v. Richardson, 1 Esp. 13; Jennings v. Throgmorton, Ry. & Moo. 251.

a sale of furniture which the seller knows and intends is to be used to furnish a house of prostitution, stipulating that it shall not be sold or removed therefrom without his consent, and providing for payments in instalments which can come only from the business;1 or where he retains the title, with power to take possession upon default or whenever he deems himself insecure, but otherwise knowingly permits it to be retained.2

§ 1023. Sales in furtherance of gambling.— Within the doctrine of the preceding cases, a sale of that which may be put to a lawful use, as, for example, a billiard table or a pack of cards, is not invalid because the seller knows that the buyer may or will use the article for gambling purposes; though if the article has no other use than an unlawful one, participation in the wrongful intent may be inferred.*

§ 1024. Sales in aid of the public enemy.-Contracts in aid of the public enemy will not be enforced. The war of the 1 Reed v. Brewer (1896), 90 Tex. 144, appurtenant to such a place. In 37 S. W. R. 418..

2 Standard Furniture Co. v. Van Alstine (1900), 22 Wash. 670, 62 Pac. R. 145.

3 Brunswick v. Valleau (1878), 50 Iowa, 120, 32 Am. R. 119, does not go so far as the text. That was the case of the sale of a billiard table, and the defense was that the table was to be used for gambling purposes, but the court found that the seller had no knowledge of such purpose, and therefore he recovered. In Bickel v. Sheets (1865), 24 Ind. 1, it was held that the sale of a billiard table was not void because the seller knew that it would be used in gaming.

4 In Spurgeon v. McElwain (1834), 6 Ohio 442, 27 Am. Dec. 266, where the keeping of a nine-pin alley in connection with a saloon was prohibited by law, it was held that a carpenter could not recover for building one

Michael v. Bacon, 49 Mo. 474, 8 Am. R. 138, it was held that the plaintiff might recover for papering a house though he knew that it was to be used as a gambling house. The distinction between these cases is clear. A race-track association entered into a contract with the defendant for the right to sell refreshments from a stand or house in which pools were sold and book-making carried on, and their betting booths were a part of the race-track scheme, from which, by sale, the association derived revenue to be used for bookmaking, the object of providing refreshments being in aid of this scheme. Held, that the contract being in aid of a gambling scheme, the plaintiff could not recover thereon. St. Louis Fair Ass'n v. Carmody (1899), 151 Mo. 566, 52 S. W. R. 365.