Tripp v. Hennessy

10 R.I. 129

• Court: Supreme Court of Rhode Island
• Decided: October 6, 1871
• Status: Published

Opinion

Braxton, C. J.

The bond in this case was as in the ease against Norton. The condition the same. The breach assigned was that the defendant Hennessy “ did sell spirituous and intoxicating. l-iquors at wholesale, to wit, in greater quantities than three gallons at one sale, contrary to the said writing obligatory.” The license granted was, to sell “ at retail,” without stating what quantities he might sell at one sale, or what shall constitute a sale by wholesale.

The sale proved was a sale of ten gallons of whiskey to a member of the police force of the city, sent by direction of the chief of police for that purpose, at the place licensed, and it was drawn from a cask containing a much larger quantity.

The statute authorizes the board of aldermen to grant licenses to sell either at retail or wholesale, and requires them to specify'in the license granted, whether the person licensed should sell at wholesale or at retail, and the license here did state that the sale should be at retail.

It is not seriously contended that a sale in this quantity is according to the common and popular import of the term a sale at wholesale. In that common and popular sense the words “ wholesale ” and “ retail ” must be taken to have been used in the statute. The sale here involves the idea of breaking up, and dividing, and parcelling out the goods which are held by the seller in larger parcels or packages in which he has purchased, and excludes the idea of selling a thing whole and unbroken. It is not insisted that within the meairing of the act as it stands, the sale made by the defendant Hennessy is one at wholesale. It has been decided that such a sale is not one át wholesale, but is such as a retailer may and does make. State v. Wilson, 2 Wis. 237. But it is claimed that it is such by virtue of a resolution of the board of aldermen. Before granting any licenses under chapter 757, which requires the licensees to state whether the licensee should sell by wholesale or at retail, the board of aider-men, in. order to define the meaning of those terms and to settle the line of distinction between them, resolved, that a sale at re tail should be a sale in quantities not exceeding three gallons; a sale in quantities greater than three gallons, a sale at wholesale.

This resolution was, however, not stated in the license which was required to be given the person licensed, and was also required to be posted up in the place licensed. The license was simply to sell at retail, neither was the resolution recited or referred to in the bond, nor was it stated or referred to in the grant of the license as recorded. The grant did not limit or define the term “ at retail.”

The license in this case, then, was a license to sell at retail, as that ■ term is commonly understood, and is not limited or restricted by the resolution of the board of aldermen.

The sale proved not being in that sense a sale at wholesale, but one at retail, there is no breach of the condition of this bond, and Judgment must be for the defendant for his costs.