#### E. S. SHELBY VINEGAR CO. v. C. L. HAWN & SON.

(Filed 9 December, 1908).

1. Spirituous Liquors — Sale in Prohibited Territory — Action Upon Contract — Doctrine, In Pari Delicto.

An action on account of sale of cider brought by the successor in business of the vendor firm, cannot be maintained, when it is established that the cider sold was intoxicating, that this was known to the parties and prohibited by law. Under the doctrine of in pari delicto, the parties are left ■in statu quo.

2. Spirituous Liquors — ■ Sale in Prohibited Territory — License — Evidence.

When there is evidence that cider sold was intoxicating, the ' sale of which was prohibited by law, it may be shown as an admission, .or quasi admission, of plaintiff, that it took out United States license to sell intoxicating liquors.

3. Spirituous Liquors — Sale and Contract in Prohibited Territory— Interstate Shipment.

A contract of sale of spirituous liquors, made in this State, to be delivered in prohibited territory here, is illegal, and cannot be enforced though shipped from another State.

4. Same — Issues—Instructions.

Upon proper pleading and evidence, it was not error for the lower court to instruct the jury, that whether the contract of sale of spirituous liquors was made here in prohibited territory, and whether by its terms the delivery was made here, were issues of fact, in an action on contract of sale of such liquors shipped here from another State.

Walker and Connor, JJ., dissenting.

ActioN tried before Ferguson, /./and a jury, February ■Term, 1908. Plaintiff appealed.

W. A. Self and A. A. Whitener for plaintiff.

Sufham & Whitener for defendant.

CLARK, 0. J.

This is an action on an account for sale of cider. It is found by the jury that the plaintiff’s predecessor, or assignor, contracted in Hickory, N. O., for the sale of cider to be delivered in that town, that the cider sold was *356intoxicating, and that plaintiff’s predecessor knew that tire sale of intoxicating liquor was prohibited in Hickory by the laws of the State at the time of such contract of sale, and of the delivery. The Court, upon these findings .entered judgment against plaintiff for costs, on the ground that- “the plaintiff cannot maintain an action for goods, the sale of which was prohibited by the laws of the State.” The plaintiff excepted to the judgment, also to the admission in evidence of the plaintiff having United States license to sell intoxicating liquor.

The plaintiff’s predecessor, or assignor, was engaged in the business of selling this cider. There was evidence that it was intoxicating. It was competent to show, as an admission, or quasi-admission by the plaintiff, that the cider was intoxicating, that it took out United States license to sell intoxicating liquors. This has been fully discussed and decided in State v. Dowdy, 145 N. C. 432.

The exception to the charge upon the fourth issue is without merit. ■ The Court simply instructed the jury that it was an issue of fact to be decided by .them, whether the contract of sale was made in Hickory, and whether by its terms, delivery was to be made in that town. The jury found that the contract was made in Hickory' that it was agreed that the delivery was to be made there, and that delivery was in fact made there. This made the transaction illegal. State v. Johnston, 139 N. C., 640; State v. Herring, 145 N. C., 418. This is not a case where a drummer here took an order for liquor to be shipped in from another State, as was alleged in State v. Hanner, 143 N. C., 632.

There is no prayer for instruction raising that point, but, if there was, the contract being made in Hickory to deliver there would make this an illegal contract, and the courts will not lend their aid to collect an account based on srich contract. If the liquor was shipped in from another State, that was simply the method the plaintiff took to procure it for his *357purposes. Tbe delivery to defendant was agreed to be made in Hickory, and was so made. The plaintiff cannot violate the law by an illegal contract and then ask the courts to help it to enforce such contract.

When, as here, the parties are in pari delicio, the courts will help neither. If the money has been paid; it cannot be recovered back unless 'the statute so provides (as in regard to usury, Revisal, 1951), and if not paid, the courts will not aid collection. It will ‘leave the parties to their own devices. King v. Winants, 71 N. C., 469; Griffin v. Hasty, 94 N. C., 438; Basket v. Moss, 115 N. C., 448; McNeill v. R. R., 135 N. C., 733; Oscanyan v. Arms Co., 103 U. S., 261 (which says, “Even if the invalidity of the contract be not specially pleaded”) ; Ewell v. Daggs, 108 U. S., 146.

The law will not lend its aid where the contract “appears to .have been entered into by both the contracting parties for the express purpose of carrying into effect that which is prohibited by law.” Broom’s Legal Maxims, 108. The Oklahoma court neatly sums up the doctrine thus: “The■ principle to be extracted from all the cases is, that the law will not lend its support to a claim founded upon its violation Kelly v. Courier, 1 Okla., 277.

No error.

Walker and CONNOR, JJ., dissenting.