
    E. W. Lindsey vs. James Stone.
    Hampshire.
    Sept. 18.
    Nov. 24, 1877.
    Endicott & Lobo JJ., ab. sent.
    Since the repeal of the St. of 1869, c. 415, § 63, an action may be maintained to recover the price of intoxicating liquors, sold in another state, while that statute was in force, by a’person who had reasonable cause to believe that the buyer intended to bring them into this Commonwealth to be here kept or sold in violation of law.
    Contract on an account annexed for the price of certain intoxicating liquors sold by the plaintiff to the defendant in April and May, 1873. Writ dated November 15, 1875. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon an auditor’s report, which was to be taken as an agreed statement of facts, and so much of which as is necessary to the understanding of the point decided appears in the opinion.
    
      ■J. B. Bottum, for the plaintiff.
    
      J. O. Hammond, for the defendant.
   Colt, J.

The auditor’s report is taken as an agreed statement of facts. He finds that the intoxicating liquors for which the plaintiff seeks to recover, to use the auditor’s own words, “ were sold in the State of Connecticut for the purpose of being brought into this Commonwealth to be here kept and sold in violation of law.” If this sentence, and the finding of the auditor that the plaintiff was not entitled to recover, had ended here, it might fairly be inferred that both parties to the sale participated in the illegal purpose; but he goes on and adds, “ that the defendant entertained such illegal purpose, and that the plaintiff had reasonable cause to believe that the defendant entertained such illegal purpose.” This addition qualifies and limits the first statement, and must have been added with that intent only; for any other object it was wholly unnecessary. It shows the extent to which the auditor found that the plaintiff, as one of the parties to the sale, was affected by the defendant’s illegal purpose. Taking the whole sentence together, it is plain that the auditor did not intend to find that the plaintiff made these sales for the purpose of promoting an illegal traffic in this state, or that he ever had knowledge of the defendant’s purpose. A case is therefore presented, where a sale was made in another state, by a seller who had reasonable cause to believe, but no knowledge of, the illegal purpose, and no intention to promote it.

When the liquors in question were sold, the St. of 1869, e. 415, was in force. By § 63, it was provided that no action should be maintained for the price of liquor sold in another state, for the purpose of being here kept or sold in violation of law; provided the seller had reasonable cause to believe that the purchaser entertained such purpose. The statute in question affects the remedy only. It does not attempt to invalidate sales legally made out of this state, or impose penalties and forfeitures on the parties to such sales.

Before this action was commenced, the St. of 1869 was repealed by the St. of 1875, e. 99, § 22, saving only pending prosecutions, and penalties and forfeitures already incurred. The rights of these parties must therefore be determined by common law rules, and those rules require at least knowledge of, as distinguished from mere reasonable cause to believe in, the illegal purpose of the buyer.

The findings of the auditor fail to bring home to the plaintiff anything more than reasonable cause to believe, and this, it is well settled, is not enough to defeat his right to recover. Adams v. Coulliard, 102 Mass. 167. Ely v. Webster, 102 Mass. 304. Hotchkiss v. Finan, 105 Mass. 86. See also Hill v. Spear, 50 N. H. 253. Judgment for the plaintiff.  