Mr. Justice Scholfield
delivered the opinion of the Court:
No question arises here whether plaintiff in error is guilty ' of having given liquor to a minor,—the offence for which he was tried, and of which he was convicted, was selling liquor to a minor; and we have heretofore held a count for the one will not be sustained by proof of the other offence. Humpeler v. The People, 92 Ill. 400.
The circuit court, by its ruling in giving the instruction asked by the People, and in refusing that asked by plaintiff in error, in effect decided that if a minor give an adult money wherewith to buy beer for the two, and the adult accept it and therewith buy beer, which is drank by the two, the vendor of the beer is guilty of a sale to the minor, within the meaning of the 6th section of the Dram-shop act, (Rev. Stat. 1874, chap. 43,) notwithstanding he did not, at the time, know that the adult had been furnished with money by the minor, and had no reason to suppose he was acting as agent for the minor,—in short, that the vendor made a contract he did not intend to make, and that he had no reason to suppose he was making. So much of that section of the statute as is material reads as fallows: “Whoever, by himself or his agent or servant, shall sell or give intoxicating liquor to any minor, without the written order of his parent, guardian or family physician, * * * shall, for each offence, be fined, ” etc. There is no definition of what shall be held to constitute a sale to a minor, nor is it specified what evidence shall be deemed sufficient proof thereof, but the question is left to be determined by settled common law principles. The word “sell” has a well known legal signification, and in the absence of' anything to the contrary appearing in the statute, we must assume that it is here intended to have that signification. There is nothing exceptional in a sale that distinguishes it from other contracts, as respects the concurrence or coming together of the minds of the parties; and so in general, if not universally, in cases of sales, parties are only bound by that to which they, in fact or in legal presumption, knowingly assent. If A propose to buy of B, and B agree to sell to A, B does not thereby become bound to sell to C; and, for like reason, if such contract be consummated as thus made, it must amount to a sale to A, and can not be held to be a sale to C. Upon the plainest and most obvious principles of natural right, as respects private property, when the question is unaffected by a public duty, an individual may contract to sell to whom he pleases, and he can not be obligated to a person, or by terms which he did not have, and could not- reasonably have had,- in contemplation when he contracted. Undoubtedly, a person may buy through an agent, and in such case, there being no question of the fact of agency, although the dealing is with and the delivery to the agent, in legal effect the sale is to the principal. The rule is, where a person contracts as agent, or he is known to be such, the contract is with his principal; but where he contracts as an individual only, and the opposite party has no knowledge of his agency, the contract, so far as it affects the opposite party, is with him alone. (Story on Agency, sec. 266 ; Chit.ty on Contracts, (11th Am. ed.) 308; 2 Kent’s Commentaries, (8th ed.) 620, *631; Wharton on Agency, secs. 431, 496; Huntington v. Knox, 12 Q. B. 311; Winchester v. Howard, 97 Mass. 303.) In such case, the principal, by virtue of his contract with his agent, may, as between themselves, be entitled to the benefit of the contract,—but this is as between themselves, only, and in nowise affects the opposite party, unless, indeed, he, after knowledge, ratifies the contract as one with the principal, in which event he would be bound by his ratification. (See authorities supra.)
We are not unmindful of the general principle that where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation,—instances of which are, acts' declaring forfeiture of ship for having smuggled goods on board, and other kindred fiscal laws; acts prohibiting intrusion into office; acts prohibiting marriage while former husband or wife is still living; and acts prohibiting seduction of females under specified ages, etc. (3 G-reenle.af on Evidence, sec. 21; 1 Wharton on Crim. Law. (7th ed.) sec. 83.) And on this principle we held, in a prosecution like the present, that the vendor of liquor is bound to know whether the person to whom he sells is a minor or an adult. (McCutcheon v. The People, 69 Ill. 601.) But here it is not ignorance of the facts or state of things contemplated by the statute, (i. e., the kind of liquor sold, the age of the party to whom sold, etc.,) but it is the nonexistence of the prohibited act,—the fact that the person to whom the liquor was sold was not the minor alleged in the indictment, but a different person, and one who was an adult, —that constitutes the defence. It is as if, in the case of the smuggled goods, it were shown the smuggled goods were not, and had not been, on board the ship sought to be forfeited ; or, in the case of the prohibited marriage, the person married was not, in fact, the husband or wife of a living person, but some other and unobjectionable person; or, in the case of intrusion into office, there had been, in fact, no attempt to assume its duties; or, in the case of the seduction, the person seduced was, in fact, a different person from that alleged, and above the prohibited age. Had the statute prohibited all persons from letting minors have liquors, and plaintiff in error had been convicted of that offence, (as in State v. Munson, 25 Ohio St. 318,) a very different question would be presented from that now before us. In that event there would have been great force in the position that the act prohibited had been done by plaintiff in error, and whether intelligently or otherwise was immaterial.
We can not extend the terms of a criminal act beyond its clear legal meaning. We can not construe the word “sell,” in such a statute, to mean something different from its ordinary legal import, and we can therefore only understand' a prohibition against persons selling to minors to extend to those who, in legal estimation, occupy the position, and are under all the obligations of contractors with minors. The prohibition against selling is only as to the excepted class, and no liability of a criminal nature is imposed upon the vendor on account of the motives with which the vendee shall purchase, or the uses to which he shall apply the liquor.
We do not regard it of controlling consequence, under this statute, whether the bar-keeper saw Cantner, and understood he was to participate in drinking the liquor, or not. It is true, in such case he would be letting a minor have liquor, and if that were prohibited he would be amenable therefor. But he would neither be selling nor giving to a minor,—he would simply be selling to an adult. To illustrate: Three men step up to a bar of a saloon, and one of them calls for three glasses of beer. The bar-keeper sets them out, and the person calling for them pays for them. Bach of the three then drinks one of the glasses of beer. There is, here, surely, only a sale to the one calling for the beer, and he, in popular language, is “treating” the other two. Whether he drinks the three glasses himself, or gives one to each of the other two, or to two other persons, can not concern the barkeeper.
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Mr. Justice Scholfield
delivered the opinion of the Court:
No question arises here whether plaintiff in error is guilty ' of having given liquor to a minor,—the offence for which he was tried, and of which he was convicted, was selling liquor to a minor; and we have heretofore held a count for the one will not be sustained by proof of the other offence. Humpeler v. The People, 92 Ill. 400.
The circuit court, by its ruling in giving the instruction asked by the People, and in refusing that asked by plaintiff in error, in effect decided that if a minor give an adult money wherewith to buy beer for the two, and the adult accept it and therewith buy beer, which is drank by the two, the vendor of the beer is guilty of a sale to the minor, within the meaning of the 6th section of the Dram-shop act, (Rev. Stat. 1874, chap. 43,) notwithstanding he did not, at the time, know that the adult had been furnished with money by the minor, and had no reason to suppose he was acting as agent for the minor,—in short, that the vendor made a contract he did not intend to make, and that he had no reason to suppose he was making. So much of that section of the statute as is material reads as fallows: “Whoever, by himself or his agent or servant, shall sell or give intoxicating liquor to any minor, without the written order of his parent, guardian or family physician, * * * shall, for each offence, be fined, ” etc. There is no definition of what shall be held to constitute a sale to a minor, nor is it specified what evidence shall be deemed sufficient proof thereof, but the question is left to be determined by settled common law principles. The word “sell” has a well known legal signification, and in the absence of' anything to the contrary appearing in the statute, we must assume that it is here intended to have that signification. There is nothing exceptional in a sale that distinguishes it from other contracts, as respects the concurrence or coming together of the minds of the parties; and so in general, if not universally, in cases of sales, parties are only bound by that to which they, in fact or in legal presumption, knowingly assent. If A propose to buy of B, and B agree to sell to A, B does not thereby become bound to sell to C; and, for like reason, if such contract be consummated as thus made, it must amount to a sale to A, and can not be held to be a sale to C. Upon the plainest and most obvious principles of natural right, as respects private property, when the question is unaffected by a public duty, an individual may contract to sell to whom he pleases, and he can not be obligated to a person, or by terms which he did not have, and could not- reasonably have had,- in contemplation when he contracted. Undoubtedly, a person may buy through an agent, and in such case, there being no question of the fact of agency, although the dealing is with and the delivery to the agent, in legal effect the sale is to the principal. The rule is, where a person contracts as agent, or he is known to be such, the contract is with his principal; but where he contracts as an individual only, and the opposite party has no knowledge of his agency, the contract, so far as it affects the opposite party, is with him alone. (Story on Agency, sec. 266 ; Chit.ty on Contracts, (11th Am. ed.) 308; 2 Kent’s Commentaries, (8th ed.) 620, *631; Wharton on Agency, secs. 431, 496; Huntington v. Knox, 12 Q. B. 311; Winchester v. Howard, 97 Mass. 303.) In such case, the principal, by virtue of his contract with his agent, may, as between themselves, be entitled to the benefit of the contract,—but this is as between themselves, only, and in nowise affects the opposite party, unless, indeed, he, after knowledge, ratifies the contract as one with the principal, in which event he would be bound by his ratification. (See authorities supra.)
We are not unmindful of the general principle that where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation,—instances of which are, acts' declaring forfeiture of ship for having smuggled goods on board, and other kindred fiscal laws; acts prohibiting intrusion into office; acts prohibiting marriage while former husband or wife is still living; and acts prohibiting seduction of females under specified ages, etc. (3 G-reenle.af on Evidence, sec. 21; 1 Wharton on Crim. Law. (7th ed.) sec. 83.) And on this principle we held, in a prosecution like the present, that the vendor of liquor is bound to know whether the person to whom he sells is a minor or an adult. (McCutcheon v. The People, 69 Ill. 601.) But here it is not ignorance of the facts or state of things contemplated by the statute, (i. e., the kind of liquor sold, the age of the party to whom sold, etc.,) but it is the nonexistence of the prohibited act,—the fact that the person to whom the liquor was sold was not the minor alleged in the indictment, but a different person, and one who was an adult, —that constitutes the defence. It is as if, in the case of the smuggled goods, it were shown the smuggled goods were not, and had not been, on board the ship sought to be forfeited ; or, in the case of the prohibited marriage, the person married was not, in fact, the husband or wife of a living person, but some other and unobjectionable person; or, in the case of intrusion into office, there had been, in fact, no attempt to assume its duties; or, in the case of the seduction, the person seduced was, in fact, a different person from that alleged, and above the prohibited age. Had the statute prohibited all persons from letting minors have liquors, and plaintiff in error had been convicted of that offence, (as in State v. Munson, 25 Ohio St. 318,) a very different question would be presented from that now before us. In that event there would have been great force in the position that the act prohibited had been done by plaintiff in error, and whether intelligently or otherwise was immaterial.
We can not extend the terms of a criminal act beyond its clear legal meaning. We can not construe the word “sell,” in such a statute, to mean something different from its ordinary legal import, and we can therefore only understand' a prohibition against persons selling to minors to extend to those who, in legal estimation, occupy the position, and are under all the obligations of contractors with minors. The prohibition against selling is only as to the excepted class, and no liability of a criminal nature is imposed upon the vendor on account of the motives with which the vendee shall purchase, or the uses to which he shall apply the liquor.
We do not regard it of controlling consequence, under this statute, whether the bar-keeper saw Cantner, and understood he was to participate in drinking the liquor, or not. It is true, in such case he would be letting a minor have liquor, and if that were prohibited he would be amenable therefor. But he would neither be selling nor giving to a minor,—he would simply be selling to an adult. To illustrate: Three men step up to a bar of a saloon, and one of them calls for three glasses of beer. The bar-keeper sets them out, and the person calling for them pays for them. Bach of the three then drinks one of the glasses of beer. There is, here, surely, only a sale to the one calling for the beer, and he, in popular language, is “treating” the other two. Whether he drinks the three glasses himself, or gives one to each of the other two, or to two other persons, can not concern the barkeeper. It is impossible that, by the mere act of one person’s drinking liquor ordered and paid for by another, a liability can be imposed on the vendor, under the section before us, which would not have existed if that person .had not drank. Suppose, in the case before us, Eoach, after ordering the beer, had changed his mind and drank it all himself, or Cantner, after coming up to the bar, had refused to drink, could there be any pretense that the question to whom the sale was made would have been thereby affected ? And yet* as disclosed by the-rulings before us, so far as concerns the plaintiff in error, the only circumstance tending to fasten upon him the charge of selling to Cantner is, Cantner drank one of the glasses of beer,—the idea that plaintiff in error had any reason to suppose that Cantner furnished the money wherewith to buy the beer, being excluded by the character of the question arising upon the rulings. A case might oftentimes exist, undoubtedly, where the bar-keeper ought to know, from the circumstances, that the person purchasing is being used by a minor simply as a screen to conceal his own participation, and in such case the vendor should be held responsible. He may not close his eyes to obvious facts, and then plead his ignorance of what all others knew; but in such case the fact should be left to the jury, to be determined from the evidence. As before observed, no such question was here submitted.
We think the ruling of the court below was erroneous in respect of the questions we have remarked upon, and for that error the judgment must be reversed, and the cause remanded for a trial de novo.
It may be conceded, as claimed by counsel for the People, that this view shows that the section under consideration may be easily violated, without probability of the punishment of the violator. But that only proves the necessity for its amendment. It furnishes no excuse for supplying, by judicial construction, what is palpably omitted.
Judgment reversed.