although the goods are in the possession of various persons.148 And where there can be no manual delivery, as in the case of goods at sea, a symbolical delivery, as of a bill of lading, is a good delivery.149 So the delivery of a bill of sale of a ship at sea is valid, provided the buyer takes actual possession as soon as he reasonably can.150 The delivery of the key of a warehouse where the goods are stored is a good delivery.151 If the goods are in the possession of the seller, it is enough if he agrees to hold as bailee for the buyer.152 If they are in the possession of a third person, it is enough if notice of the sale is given to him and he does not dissent.153 But the mere delivery of a bill of sale without delivery, actual or constructive, is not enough.15 Some of these cases are hard to reconcile with the statement of Holmes, J., in a recent case,' 155 that the delivery required by the rule in Lanfear v. Sumner is delivery in its natural sense, that is, change of possession,-for it is generally held, in connection with other branches of sale, that mere notice to a bailee without his attornment does not constitute delivery. In the latter case it was held that the indorsement and delivery by the bailor of a receipt for goods stored in a private warehouse, making the goods deliverable to the bailor on the payment of charges, but not to his order, did not pass the title as against a creditor attaching the goods before notice to and attornment by the bailee.

148 Legg v. Willard, 17 Pick. (Mass.) 140, 28 Am. Dec. 282; Hobbs v. Carr, 127 Mass. 532. And see Parry v. Libbey, 166 Mass. 112, 44 N. E. 124.

149 Pratt v. Parkman, 24 Pick. (Mass.) 42.

150 Carter v. Willard, 19 Pick. (Mass.) 1, 9, 11; Conard v. Insurance Co., 1 Pet. (U. S.) 386, 389, 7 L. Ed. 189; Wheeler v. Sumner, 4 Mason (U. S.) 183, Fed. Cas. No. 17,501.

151 Packard v. Dunsmore, 11 Cush. (Mass.) 282; Vining v. Gilbreth, 39 Me. 496.

152 See Ingalls v. Herrick, 108 Mass. 351, 11 Am. Rep. 360.

153 Carter v. Willard, 19 Pick. (Mass.) 1; Russell v. O'Brien, 127 Mass. 349. And see Union Stockyard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554, 41 N. E. 888, 48 Am. St. Rep. 341.

154 Dempsey v. Gardner, 127 Mass. 381, 34 Am. Rep. 389; Farrar v. Smith, 64 Me. 74. See,

155 Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433. also, Gill v. Frank, 12 Or. 507, 8 Pac. 764, 53 Am. Rep. 378.

61. An agreement is not enforceable at law, and therefore does not result in a contract, if its object is illegal.

62. CLASSIFICATION OF UNLAWFUL SALES. Unlawful sales may be classified as sales prohibited by—

(a) The common law, or

(b) Statute.

To result in a contract, an agreement must create an obligation; and it does not create an obligation if it be such that the courts cannot enforce it. An agreement, therefore, which is illegal or unlawful, is in fact no contract at all, although it is often spoken of as an illegal contract. Certain limitations are imposed by law upon the freedom of contract. Certain contracts of sale, either because of the subject-matter of the sale, or because of the purpose for which the sale is entered into, or because certain requirements of the law have not been complied with, or because of other reasons, are prohibited. If an agreement to sell contemplates an illegal sale, the law will not enforce the agreement, although all the other elements necessary to the formation of a valid contract may be present. If the agreement has been executed, by the delivery of the goods or the payment of the price, the court will not as a rule lend its aid to either party to recover what he has paid or delivered. The effect of the illegality upon the rights of the parties, however, will be considered later.2

The modes in which the law expresses its disapproval of

1 Clark, Cont. (2d. Ed.) 254.

Post, p. 219.

certain contracts may be roughly described as prohibition (1) by express rules of the common law; (2) through the interpretation of the courts of the policy of the law; and (3) by statute. The first two are not easy to distinguish because certain of the rules which have been formulated by the courts on matters of public policy have become in effect rules of the common law. So far as concerns the law of sales, the subject may be discussed under the first and third heads.

SALES PROHIBITED BY COMMON LAW.

63. An agreement to sell is illegal at common law if the thing to be sold is in itself contrary to good morals or decency.

64. Although the thing to be sold is innocent in itself, the agreement is illegal

(a) If it provides that the thing is to be applied to an illegal purpose.

(b) If the buyer intends to apply the thing to an illegal purpose, and the seller does some act in aid of such purpose.

(c) If the buyer intends to apply the thing to a purpose involving a heinous crime, and the seller knows of such intention.

(d) In some states, if the sale is made by the seller with a view to the buyer's illegal purpose.

In most jurisdictions, mere knowledge on the seller's part that the buyer intends to apply the thing to an illegal purpose does not render the sale illegal.

Sale of Things Contrary to Good Morals.

A general rule of the common law is summed up in the maxim, “Ex turpi causa non oritur actio." Therefore the sale of a thing which is in itself contrary to good morals or public decency cannot become the basis of an action. Sales of an obscene book, and of indecent prints or pictures," have been de

8 Anson, Cont. 163; Clark, Cont. (2d Ed.) 255. Sales prohibited by public policy are said to include: (1) Sales of offices; (2) sales by which the seller is unreasonably restrained in carrying on his trade; and (3) sales of lawsuits. These subjects have little connection with the sale of goods, and need not be here considered. See Benj. Sales, §§ 512-529; Clark, Cont. (2d Ed.) 281 et seq. 4 Poplett v. Stockdale, Ryan & M. 337.

Fores v. Johnes, 4 Esp. 97.

TIFF.SALES(2d Ed.)—14

clared illegal and void at common law, although upon this point there have been few decisions.

Sale of Innocent Thing for Unlawful Purpose.

Whether the sale of a thing in itself an innocent and proper article of commerce, when the seller knows that it is intended to be used for an immoral or illegal purpose, is valid, is a question on which the authorities disagree, although the decisions in this country are fairly reconcilable.

7

The earlier English cases held that something more than mere knowledge on the part of the seller of the illegal purpose was necessary, and that there must be evidence of an intention on his part to aid in the illegal purpose or to profit by the immora! act. Thus, where clothes were sold to a prostitute, with knowledge that they were for the purpose of enabling her to pursue her calling, it was held that this was not enough, but that it must appear that the seller expected to be paid out of the profits of her 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. And so, in an action for the price of spirits sold with knowledge that the defendant intended to use them illegally, it was held that the plaintiff could recover, since to deprive him of his right to payment, it was necessary that he should be a sharer in the illegal transaction." But the later English cases overrule this distinction, and hold that the sale is void if the seller knows of the illegal purpose.10 Thus, where the plaintiff supplied a brougham to a prostitute, it was held not necessary to show that he expected to be paid from the proceeds of her calling; that his knowledge of her calling justified the jury in inferring knowledge of her purpose; and that this knowledge rendered the agreement void.11 In the United States the cases, on the whole, follow substan

Benj. Sales, 504.

7 Benj. Sales, § 506 et seq.

8 Bowry v. Bennet, 1 Camp. 348.

• Hodgson v. Temple, 5 Taunt. 181.

10 Pearce v. Brooks, L. R. 1 Exch. 213; Cannan v. Bryce, 3 Barn. & Ald. 179. See, also, McKinnell v. Robinson, 3 Mees. & W. 435; Anson. Cont. 192; Clark, Cont. (2d Ed.) 327.

11 Pearce v. Brooks, L. R. 1 Exch. 213.

tially the earlier English doctrine, and hold that mere knowledge of the buyer's unlawful purpose does not invalidate the sale,12 though all agree that the sale is void if it be a part of the contract of sale that the goods are to be used for an illegal purpose,18 or if the seller does any act in aid of the buyer's unlawful intention, as when he packs goods in a manner convenient for smuggling, or conceals the form of liquor so as to enable the buyer to evade the law, or marks, domestic sardines as French to assist the buyer in selling them as such.1 It is frequently said, however, that knowledge of the buyer's purpose to use the goods in the commission of a crime which is not merely malum prohibitum or of inferior criminality stands

12 Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132; Sortwell v. Hughes, 1 Curt. (U. S.) 244, Fed. Cas. No. 13,177; Green v. Collins, 3 Cliff. (U. S.) 494, Fed. Cas. No. 5,755; Hill v. Spear, 50 N. H. 253. 9 Am. Rep. 205; Tuttle v. Holland, 43 Vt. 542; Cheney v. Duke, 10 Gill & J. 11; Wallace v. Lark, 12 S. C. 576, 32 Am. Rep. 516; Bickel v. Sheets, 24 Ind. 1; Webber v. Donnelly, 33 Mich. 469; Michael v. Bacon, 49 Mo. 474, 8 Am. Rep. 138; Anheuser-Busch Brewing Ass'n v. Mason, 44 Minn. 318, 46 N. W. 558, 9 L. R. A. 506, 20 Am. St. Rep. 580; J. M. Brunswick & Balke Co. v. Valleau, 50 Iowa, 120, 32 Am. Rep. 119; McKinney v. Andrews, 41 Tex. 363; Delavina v. Hill, 65 N. H. 94, 19 Atl. 1000; Gambs v. Sutherland's Estate, 101 Mich. 355, 59 N. W. 652. McIntyre v. Parks, 3 Metc. (Mass.) 207, is in line with these decisions. See, also, Dater v. Earl, 3 Gray (Mass.) 482. But there are strong intimations in the later Massachusetts cases that the law is the other way. Suit v. Woodhall, 113 Mass. 391, 395; Finch v. Mansfield, 97 Mass. 89, 92; Graves v. Johnson, 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834, 32 Am. St. Rep. 446, per Holmes, J.; Clark, Cont. (2d Ed.) 328. See, also, Reed v. Brewer, 90 Tex. 144, 37 S. W. 418; Standard Furniture Co. v. Van Alstine, 22 Wash. 670, 62 Pac. 145, 51 L. R. A. 889, 79 Am. St. Rep. 960; St. Louis Fair Ass'n v. Carmody, 151 Mo. 566, 52 S. W. 365, 74 Am. St. Rep. 571.

13 Tracy v. Talmage, 14 N. Y. 162, 176, 67 Am. Dec. 132; Green v. Collins, 3 Cliff. (U. S.) 494, 501, Fed. Cas. No. 5,755; Clark, Cont. 481.

14 Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154; Aiken v. Blaisdell, 41 Vt. 655; Skiff v. Johnson, 57 N. H. 475; Banchor v. Mansel, 47 Me. 58; Kohn v. Melcher (O. C.) 43 Fed. 641, 10 L. R. A. 439; Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132; Arnot v. Coal Co., 68 N. Y. 566, 23 Am. Rep. 190; Waymell v. Reed, 5 Term R. 599.

15 Materne v. Horwitz, 50 N. Y. Super. Ct. 41; Id., 101 N. Y. 469, 5 N. E. 331.