Daniels v. McCabe

6 F. Cas. 1170, 3 Cliff. 114

• Court: U.S. Circuit Court for the District of New Hampshire
• Decided: May 15, 1868
• Status: Published

Opinion

CLIFFORD, Circuit Justice.

The substantial finding of the case is, that the liquors were sold at the store of the plaintiffs in Boston, and were by them delivered to the defendant at the depot of the railroad named in that city, so that it clearly appears that the contract was made and the sale completed in the state where the plaintiffs reside. Actual delivery of the liquors to the ■defendant at that place must be understood as found by the statement of fa'cts. Such is the clear import of the statement; but if it be ■considered as a delivery to a carrier for the defendant, it was equally valid, as between the parties, and the same conclusion must follow. Orcutt v. Nelson, 1 Gray, 542.

“Delivery to a common carrier,” says Shaw, C. J., in that case, “completes the contract ■of sale, vests the property in the vendee, and consequently the goods, during the transit, are at the risk of the vendee.” See-, tion 2S prohibits the manufacture for sale, and the selling of spirituous and intoxicating liquors, or any mixed liquor, part of which is spirituous or intoxicating, unless the party •doing any of those acts is authorized, as provided in that chapter (page 442). The penalty prescribed by the thirtieth section of the act is ten dollars, and imprisonment in the house of correction not less than twenty nor more than thirty days for the first offence, which is increased for subsequent violations. All payments or compensations for spirituous or intoxicating liquors ■sold in violation of law, whether in money, labor, or personal property, are declared by the sixty-first section to have been received without consideration, and against equity, law, and good conscience. Page 44S. These, ■several sections are, by the agreed state-, ment, made a part of the ease. The settled law in Massachusetts is, that no action can be maintained to enforce an executory ■contract for the price of liquors sold and delivered. Adjudged cases to that effect, in' the reported decisions of the highest court of that state, are quite numerous.

Consignors of spirituous liquors, it is held, cannot maintain an action against their consignees, for the breach of an agreement to .render an account of sales, pay the value •of the liquors sold, and return the residue. King v. McEvoy, 4 Allen, 110.

The express rale also, as laid down by that court is, that no action lies to recover the proceeds of spirituous liquors sold in violation of law, by one to whom they had. been intrusted, for the purpose of being sold by the owner. Justification for such a principle, which refuses damages for a breach. -of trust, can only be found in some positive' rule of law, denying any power in the court to grant relief. Galligan v. Fannan, 7 Allen, 255.

Damages cannot be recovered for a breach ¡ •of warranty in the sale of a horse, where it appears that the price of the horse is to be paid in liquors, which the purchaser cannot legally sell. Howard v. Harris, 8 Allen, 207; Baker v. Collins, 9 Allen, 253.

Taken together, it would seem that these decisions are sufficient to show what the rule upon the subject is; but the h'ghest court of that state has formally decided that no action will lie against a surety upon a promissory note, given in part for the price of cider sold for a beverage, within that state. Nourse v. Pope, 13 Allen, 87.

Neither authority nor argument is necessary to show that these decisions of the state court furnish the rule of decision in this case, as the proposition is universally acknowledged. Such is the rule upon general principles, but it is expressly made so by the thirty-fourth section of the judiciary act. 1 Stat. 92.

Payment of a license fee or tax, or both, to the United States, under the internal-revenue laws passed by congress, does not authorize the sale of intoxicating liquors, in violation of the laws of a state. Com. v. Holbrook, 10 Allen, 200.

Discussion of that question, however, is now unnecessary, as it is now authoritatively settled by the decision of the supreme court Pervear v. Com., 5 Wall. [72 U. S.] 475.