Ruemmeli v. Cravens

13 Okla. 649

Opinion

Dissenting opinion by

IuwiN, J.:

The reversal of this case is asked for on three grounds, but we think it only necessary to consider the first, viz: Plaintiff in error contends that the court committed material error against him in sustaining the motion of defendant for judgment on the opening statement of counsel for plaintiff, because the license of defendant Cravens authorized him to sell the beer mentioned in said statement.

Now the motion of the defendant in error being based -entirely upon the opening statement of the counsel for plaintiff in error, it must be considered that everything stated in that opening statement is true, and if true, if it makes out a case on which the plaintiff could recover, then the judgment of the court was wrong, and should be reversed.

The question here presented is: Was the wholesale license which it is conceded was granted to the defendant in error Cravens a sufficient authority for the sale of the beer, the proceeds of which are sued for in this case; in other words, was it necessary that the plaintiff, Euemmeli, should have had a wholesale license before he had the legal right to furnish his agent the beer in question tó be sold in Kay county, Oklahoma Territory.

The law of this territory regulating the sale of intoxicating liquors, revised statutes of 1893, p. 653, chapter 47, art. 1, section 1, provides among other things the manner in which a license for the retail sale of intoxicating liquors shall be obtained, and also provides the qualifications of the applicant, and the price to be paid therefor. That provision provides the number of taxpayers that shall sign the petition, and where they shall reside; also the place where such liquor is to be sold, and also setting forth that the applicant is a man of respectable character and standing and is a resident of the territory.

Section 8 of the same chapter is as follows:

“That all persons selling liquors at wholesale shall be subject to all the provisions of this act, except that they shall be required to pay in each county within the territory where they so wholesale liquors, a license fee of one hundred dollars per annum, or for any part of the year they may so sell, and no more, and shall not be required to pay the license fee hereinbefore mentioned. And no wholesale dealer shall engage in the retailing of liquor without complying with the law applicable to retail dealers, in addition to the license required by this section. 'Wholesalers shall not sell in less quantities than four 'and one-half gallons; provided, that wholesale malt, exclusively, shall pay a license of twentj^-five dollars annually/'’

Now these provisions authorize the person holding a license to sell intoxicating liquors. They do not contain any provision that the person making the sale shall be acting in any particular capacity, neither do they in express terms or by a reasonable implication prohibit any person so holding a license from selling such liquors as agent.

Now under the statement of counsel in opening the case in the court below, the statement is made, and is an absolute verity so far as the purposes of the present investigation is concerned:

“He (meaning the plaintiff in error) made and entered into an agreement sometime in the early part of the year 1896, with 'the defendant in this case, William Cravens, by which William Cravens was to secure a license in his name— that is, in William Cravens’ name — in this, Kay county, Oklahoma Territory, and possibly some other counties in this territory. That Mr. Ruemmeli was to furnish Mr. Cravens beer and ice, and that- Mr. Cravens was to sell the beer and ice to retail dealers in this county, who were lawfully licensed to sell the same. That Mr. Cravens was to have the entire charge, management and control of that business, was to look after it, and that he was to exercise his discretion in his position according to the laws of the Territory of Oklahoma and in all manner conduct his business subject to the laws of the Territory of Oklahoma; that his place of business was established at Ponca City, Oklahoma; and that this beer and ice, and beer particularly, was to be furnished upon orders either in carload lots or in certain packages from the' brewery in Milwaukee, Wisconsin.”

Now, under this statement, by whom was the sale of this beer made? Was it the plaintiff -in error, Ruemmeli, or was it the defendant Cravens? It is contended by counsel for defendant in error that Ruemmeli sold this beer through his agent Cravens to the retail dealers in Kay county, Oklahoma Territory. Now, it is true that Cravens acted as an agent in the conducting of this sale, but the sale was made, not by Ruemmeli personally, but by Cravens as his agent. The object of the liquor laws of this territory in regulating the traffic is for the purpose: first, of putting the sale of intoxicating liquors into the hands of respectable and responsible parties; second, to derive a revenue therefrom.

Now, when th"e legally constituted authorities of Kay county granted a license to William Cravens to sell intoxicating liquors in Kay county, the license granted to him contained no prohibition against his selling such liquor as agent of Ruemmeli or any other person; neither did it contain any condition or requirement that he was to be the owner of the liquor so sold. It is immaterial to the people of Kay county as to who was the real owner of the property in the beer sold, but it is a matter of vast importance to them as to who was to conduct the sale. The question of the capacity in which Cravens acted depended upon a private arrangement between himself and his employer, and by that arrangement he was recognized by the employer as an agent, but so far as the rights of the people of Kay county was concerned, he was a principal in the sale of the liquor.

It is apparent from the statement that the business was conducted in the name of William Cravens. It is further alleged in the statement of counsel that the plaintiff, Ruem-meli, had no control or management over the business, except to furnish the beer and ice, and collect his pay therefor.

Now, would it be contended that the requirements of the liquor law of this territory demanded that as to the same identical sale there should be more than one license. The opening statement shows that these goods were shipped in to Ponca City by the plaintiff in error, who was a resident of the city of St. Louis, and after such shipment were taken by the defendant Cravens and sold. True, they were sold by Cravens, as agent, but such a sale was fully covered and fully authorized by the terms of his license; then can it be said that such a sale was illegal; can. it*be said that, in the face of the statement of counsel, which is accepted, for the purpose of this hearing, as a fact, that such sale was to be conducted under a license previously obtained, and to be made in accordance with all the laws regulating this subject in the territory, such sale was illegal ? If it was a legal sale, then it would be no defense on the part of the defendant Cravens, when the plaintiff seeks to recover from Mm 'money which under the contract between plaintiff and defendant was actually due, and in equity and good conscience ought to have been fully paid.

It may reasonably have been, and no doubt was the purpose of having the goods shipped by the plaintiff in error to the defendant as agent, to protect the plaintiff in error in the property in said goods until such time as he would receive his pay therefor, or it may have been as an additional safeguard to secure the collection of the debt in this regard. This is not an uncommon way of taking security by wholesale houses in dealing with beer or any other commodity; it is not an uncommon thing for brewers or distillers to organize agencies in the different counties of this territory, and in all the various states in the Union, and it seems to us that all the law requires when such agencies are opened, is, that before the goods are sold that the laws regulating the traffic in such articles shall be complied with.

Taking the statement of defendant’s counsel in their brief and following it to its legitimate conclusion, we think it tends to sustain, rather than refute the views of counsel for plaintiff in error.

In defendant’s counsel’s brief, page 2-3, we find this language:

“If the position of plaintiff is sound, then William Cravens may take out a license to sell liquor at wholesale, and sell under such license the beer of the Pabst Brewing Co., of the Ferd Heim Brewing Co., of the Lemp Brewing ■Co., the Sehlitz Brewing Co., the Miller Brewing Co., and all of the other brewing establishments which vend their beer at wholesale in this territory, and under the guise of a license to an agent, who pays the fee of a hundred dollars in each county the large number of members selling their liquors in the territory may escape the payment of the liquor license to sell at wholesale, required by the statute.”

Now, with the slight discrepancy in price which should have been twenty-five dollars instead of one hundred dollars, as in this case nothing but malt liquor was sold, let us analyze, for a moment this statement of counsel for defendant in error. Does he intend by this statement to say that a man who has a license to wholesale malt liquors or beer shall be obliged to specify in that license that he will only and exclusively handle Pabst beer, Sehlitz beer, Miller’s beer, Heim beer or any other particular brand of beer?

I take the reasonable construction of the language of the license for wholesaling beer to be that when a man takes out a license to wholesale beer, complies with the requirements of the law and pays the price required therefor, that he is then at liberty to sell as many different kinds and brands of beer as he may choose, and as his customers may desire, and that he is under no obligation to specify at the time of the sale that he is selling only beer in which he has an unqualified, unconditional and exclusive title. He may sell as principal, he may sell as agent, he may sell as owner, or he may sell as a person having only the custody and the right to sell. The only restriction that the laws of this territory put upon the business is that it shall be conducted in accordance with the laws of the territory as to the person, and by the person authorized by the license to so conduct the business.

Does it make the sale illegal because the absolute property in the beer in question did not pass by their arrangements and agreement from the plaintiff in error to the defendant in error at the time the defendant in error as agent sold the beer? Let us carry it a step further under the statement of counsel. It is apparent that the plaintiff in error, Euem-meli, obtained this beer which was shipped to Ponca City in car load lots to the defendant Cravens, from the Pabst Brewing Co. of Milwaukee, Wis. Suppose that for their protection, the Pabst Brewing Co. had exacted from the plaintiff Euemmeli an agreement that he was not to be the owner of this beer, but was to act as the agent of the Pabst Brewing Co. at a stipulated sum per month, and was to handle their beer in this way; and without divulging that agency he had entered into a contract with Cravens, such as described in the opening statement of counsel for plaintiff. Now, would the gentleman who represents the defendant in error contend that it required a license from Cravens who actually sold the beer, another license from Euemmeli who shipped it to him, and still a third license from the Pabst Brewing Co. of Milwaukee, Wis., who owned the beer? This, it seems to us, would be simply ridiculous.

The authorities cited by defendant’s counsel in support of their contention have been examined by us, and they are all without exception cases where the sale was in itself illegal; and for the reasons above expressed, we think the sale as shown and set forth in the statement of counsel in this case was in strict compliance witb the law, and a legal sale. For these reasons they do not apply. Therefore we think that there is no foundation in law or reason in the contention of defendant’s counsel, and we think that the action of the district court in sustaining their motion for judgment on the statement of counsel for plaintiff was error.

Suppose we consider for the sake of the argument that this beer was sold by the plaintiff in error, Euemmeli, and that he did not have a license. It was sold through an agent who had a legal right to make the sale. The direct medium through which that sale was made was a medium which was legalized and made legitimate and lawful by the laws of this territory.

Now, can it be said that the sale as made, is such an illegal sale as would deprive a party from obtaining redress in court or asserting his legal rights as set forth in the pleadings ? We certainly think not.

Let us put it in another light. Did the defendant, Cravens, under the license which he held from the commissioners of Kay county, have the legal right to sell beer as an agent? This, we think, cannot reasonably be denied under the terms of the license. If he did have such a right, and did so sell, then can it be said that such a sale was an illegal sale? If not, then the contention of defendant is certainly erroneous.

Hence, I think the majority opinion of this court doe? not correctly state the law as applied to this case, as it would seem to me that to put such a construction on the contract of the parties would be awarding a party an advantage by reason of his own wrongful acts, and allow him to take advantage of his own unlawful conduct, and by means of his unwarranted and unauthorized conduct defeat the collections of his just debts.