Dunckel v. Pepper

Court of Appeals of Georgia

Dunckel v. Pepper

240 S.E.2d 757, 144 Ga. App. 122, 1977 Ga. App. LEXIS 2604

CourtCourt of Appeals of Georgia

DecidedNovember 23, 1977

Docket54465

StatusPublished

This text of 240 S.E.2d 757 (Dunckel v. Pepper) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dunckel v. Pepper, 240 S.E.2d 757, 144 Ga. App. 122, 1977 Ga. App. LEXIS 2604 (Ga. Ct. App. 1977).

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Opinion

Banke, Judge.

The appellant contracted to purchase $12,233 worth of tax-paid, fire-damaged liquor from the appellee. Both held retail liquor licenses. The appellant discontinued payments on the contract price after paying a total of $10,000. The appellee sued for the balance, and a jury found in his favor. This appeal is from the denial of the appellant’s motion for new trial.

The appellant contends that the trial court erred in denying his motion for directed verdict, which was based on his defense that the transaction was void for illegality. Under the law in effect at the time, the sale by a retail liquor licensee of more than two quarts per day to any purchaser was a misdemeanor. Code Ann. § 58-1080 (Ga. L. 1937-1938, Extra. Sess., pp. 103, 124). Although there was no evidence at trial of the quantity of liquor involved in this sale, the purchase price of $12,233 demands a conclusion that it was more than two quarts. It also appears that the appellant’s store was closed down for 21 days as a result of the purchase having been made from someone other than a wholesaler.

Where a sale of liquor is shown to be in violation of state revenue laws and is punishable as a misdemeanor, the seller cannot recover in an action for the purchase price. Bernstein v. Peters, 69 Ga. App. 525, 531 (26 SE2d 192) (1943). It was error to deny the motion for directed verdict.

Judgment reversed.

Shulman and Birdsong, JJ., concur. Jack C. Bell, for appellee.

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Banke, Judge.

The appellant contracted to purchase $12,233 worth of tax-paid, fire-damaged liquor from the appellee. Both held retail liquor licenses. The appellant discontinued payments on the contract price after paying a total of $10,000. The appellee sued for the balance, and a jury found in his favor. This appeal is from the denial of the appellant’s motion for new trial.

The appellant contends that the trial court erred in denying his motion for directed verdict, which was based on his defense that the transaction was void for illegality. Under the law in effect at the time, the sale by a retail liquor licensee of more than two quarts per day to any purchaser was a misdemeanor. Code Ann. § 58-1080 (Ga. L. 1937-1938, Extra. Sess., pp. 103, 124). Although there was no evidence at trial of the quantity of liquor involved in this sale, the purchase price of $12,233 demands a conclusion that it was more than two quarts. It also appears that the appellant’s store was closed down for 21 days as a result of the purchase having been made from someone other than a wholesaler.

Where a sale of liquor is shown to be in violation of state revenue laws and is punishable as a misdemeanor, the seller cannot recover in an action for the purchase price. Bernstein v. Peters, 69 Ga. App. 525, 531 (26 SE2d 192) (1943). It was error to deny the motion for directed verdict.

Judgment reversed.

Shulman and Birdsong, JJ., concur. Jack C. Bell, for appellee.

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240 S.E.2d 757, 144 Ga. App. 122, 1977 Ga. App. LEXIS 2604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunckel-v-pepper-gactapp-1977.

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