Wenham v. Dodge

98 Mass. 474

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1868
• Status: Published

Opinion

Hoar, J.

This action is upon a bond given by the defendant Dodge and his sureties to the inhabitants of the town of Wen-ham, upon his appointment as agent of the town for the sale of spirituous and intoxicating liquors, under the provisions of Gen. Sts. c. 86, §§ 17-23. The bond is in the form prescribed by the statute in § 18; and the material part of the condition is, that the agent “ shall, in all respects, conform to the provisions of law relating to the business for which he is appointed.” By § 20, the agent is required to keep an account of all liquors purchased by him, specifying certain particulars; and is also required “ to keep a book and enter therein the date of every sale made by him, the person to whom sold, the kind, quantity and price thereof, and the purpose for which it was sold, substantially in the form” which is therein prescribed; which book is to oe at all times open to the inspection of certain municipal officers. The breaches of the bond relied upon, so far as they are material to this bill of exceptions, were, that the agent had not kept such an account of purchases or sales as the statute enjoined. The presiding justice of the superior court ruled that the evidence was not sufficient to justify a verdict for the plaintiffs ; and, a verdict being returned in favor of the defendants the plaintiffs took exceptions.

So far as the account of purchases is concerned, the instruction seems to us to have been correct. The bills furnished by the defendant Dodge, though not a formal account, contained in substance all the particulars which were requisite; and, as the statute prescribes no form of account, and the selectmen had given no direction ana made no regulation upon the subject may be considered sufficient.

But upon the other branch of the case we are unable to concur in the view taken of the law, and are of opinion that the exceptions must be sustained. There was evidence which should have been submitted to a jury upon the question whether the agent kept the account of sales which the statute required.

In the first place, there was evidence to be submitted to the jury upon the general correctness of the account. The fact appeared that there was no entry whatever upon the book to show what had become of one third of the liquors which he had purchased; and that the chief deficiency was in the whiskey. All that he had to say on the subject was, “ that his book account was true, and that he had been entirely honest.” But, coupled with the facts that his purchases had been made from time to time in small quantities, and that there were various irregularities in the entries upon the book, such a large deficiency in the quantity of liquors remaining in his possession, wholly unexplained, was evidence to be submitted to the jury under proper instructions, to determine whether he had made sales which were not entered upon the book in any form.

But on another point the objection to the ruling is equally decisive. The statute is imperative upon the agent that his record shall contain the name of the person to whom each sale is made, and the kind, quantity and price of the liquor sold. We can have no doubt that this was intended to be a stringent and absolute requirement. The form given in. the statute is to be “ substantially” followed, but the fact is in some form to be stated in the record. The statute makes no exception in terms of “ accidental and occasional errors,” but requires something which it is easily in the agent’s power to do, and which he and his sureties have undertaken that he shall do. It is the mode provided for a check upon his proceedings. And though we do not mean to be understood as deciding that he is to be responsible for every mistake of fact, if he has made truly and completely the record of the facts so far as they were within his knowledge, — as, for example, if the name entered upon his book was not the true name of a purchaser, if it was the one he understood it to be, — yet the omission to enter the quantity sold to any persor, or to give any name whatever of a purchaser, was a violation of the statute and a breach of the bond, although it might be done negligently, and not wilfully or fraudulently.

The hardship upon a party, who, by slight and unintentional errors, should subject himself to a considerable pecuniary penalty, is apparent. But the suit is in the power of the inhabitants of the town for whose use it is prosecuted; and it can hardly be supposed that they would enforce such a liability to its full extent against one of their citizens, if he could satisfy them that he had acted in good faith and with reasonable regard to the obligations which he had assumed. However this may be, we have only now to decide upon the legal effect and construction of the contract. Exceptions sustained.

At the new trial, before Wilkinson, J., the selectmen testified that it was on February 15, 1867, that they gave the agent notice to close his business; and that at the same time they demanded of him an account of his sales, in reply to which demand he on March 9 delivered to their chairman a book account of sales, compiled in the tabular form set forth in the statute, being the same book which was put in evidence at the former trial and now again introduced, showing thirty-six entries in which the agent had made no memorandum of the quantity sold, and in twenty-two of which the sales consisted of two or three different kinds of liquors, and so afforded no means of computing the quantity of either kind inferentially, and showing also seven entries in which there was no memorandum of the name of the person to whom the liquor was sold other than “ice com.,” or “man at the pond,” or “committee of the camp ground.” The plaintiffs further introduced evidence of the deficiency of liquors, substantially as at the former trial; and of the failure of the agent to give any explanation thereof beyond bis assertion that his book account was true and he had been entirely honest.

The agent testified that during his term of office he made no sales which were not recorded: that when he was away from home his wife made sales which he entered on his books when he returned; that it was clear that there were considerable deficiencies of liquors; and that he was wholly unable to explain them.

He then offered in evidence three small books which he said were his private property and contained the original entries of all his sales; and the judge admitted them, against the plaintiffs’ objection. The number of sales recorded on these books corresponded with the number recorded on the book which he delivered to the selectmen; but, except in two or three instances, these books contained no record of the residence of the person to whom, nor of the purpose for which, the sales were made. The agent, however, testified as to these books, that “ when he sold to any person who resided in the town of Wenham he made no entry of the residence; but when he made sales to any person not residing in Wenham, whom he did not know, he put down the residence; ” and that “ when he sold for medicinal purposes he made no entry at all upon his book of original entries of the purposes for which the liquors were sold; but, when he made sales for any other purpose, he entered the purpose upon his book.” In the book furnished to the selectmen these omissions of residence and purpose were supplied.

There were also in these small books some omissions to record either kind or quantity. But by the bill of exceptions it did not appear that there was on the tabular record any omission of kind, and only the thirty-six instances above named of omissions of quantity. In the corresponding entries on the small books of twenty-eight of these thirty-six there was no omission of quantity; but the plaintiffs contended that the eight others were defective. In the seven cases above enumerated of descriptions of purchasers, which also the plaintiffs contended were insufficient, the entries on the small books were the same as on the tabular record.

The agent testified that the tabular record book which he furnished to the selectmen was copied, at intervals of from one to three months after the sales were made, from the books of original entries, and he intended that it should be, and he supposed it was, a true copy of the original entries; that, wheii the selectmen asked him for his account, he did not show them the books of original entries, and had never shown them to any one, although he considered them, as well as the large book, at all times open to the inspection of the proper officers, but no such officer had asked to see them.

The judge submitted, as a question of fact, to the jury, “ whether the entries were properly made upon the agent’s book or books,” and instructed them “ that, if the small books were kept as books of original entries of sales, with date of sale, kind, quantity and price of liquor sold, purpose for which and person to whom sold, and were at all times open to the inspection of the selectmen, overseers of the poor, sheriffs, constables, and justices of the peace, in Wenham, they would be a compliance with the law; that, if the contents of the small books were from time to time copied into the large book, and it contained a true statement of the statute requirements, kept in conformity thereto, that book would be a compliance with the law; and that, if the entries on the small books were copied substantially into the large book in good faith, slight and unintentional mistakes in copying would not be a breach of the bond, if all the books were kept as aforesaid, and taking them together the entries conformed to the statute.”

The jury returned a verdict for the defendants; and the plaintiffs alleged exceptions, which were argued by the same counsel at November term 1868 for Essex.

Wells, J. The bond required by Gen. Sts. c. 86, § 18, does not secure the town for the loss or deficiency of the liquors intrusted to the agent. It is upon condition that he “ shall, in all respects, conform to the provisions of law relating to the business for which he is appointed, and to such rules and regulations ” as may be established by the selectmen. The breach relied upon is the failure to keep such books of account or record of sales as the statute requires. Gen. Sts. c. 86, § 20. The defendant Dodge kept certain books containing a record of sales, which were subject to the inspection of the proper officers, if they had chosen to examine them. These books were pioduced at the trial; and, in accordance with the former decision in thi* case, the question whether they were a complete and correct record, in compliance with the requirements of the statute, was submitted to the jury, and determined in favor of the defendants.'

Upon the question whether the books furnished a complete record, that is, a record of all sales actually made, no point is now open. Upon the question whether the record, as made, sufficiently set forth the various particulars required by the statute, the plaintiffs claimed that certain alleged omissions or deficiencies of statement in the entries should be held, by the court, as a breach of the bond. As the facts in regard to those alleged deficiencies were in dispute, and as the agent had undertaken to account for and explain them by his testimony, we think the judge properly left the whole question to the jury. We must presume that he did so with proper explanations as to what was necessary to constitute a breach of the bond, and proper instructions to enable them to apply to the case such conclusions as they should form upon the facts.

The court below ruled that the small books of original entries would, of themselves, be a compliance with the law, if they contained the several particulars required, and were at all times open to the inspection of the selectmen and other officers. We see no reason to question this ruling. It is true that the statute gives a tabular form for the required statements. But we should be unwilling to hold that the lines by which the several particulars are divided into columns are essential to the record ; espe-' daily when the statute itself only requires the record to be kept substantially in that form ; and the selectmen have adopted no regulation directing it to be only in that particular mode. We think therefore that the judge ruled properly that either record, if it contained all the required facts, would be a compliance with the law. It follows, of course, that the small books were properly admitted in evidence. They were admissible also upon the other question, whether the defendant had in fact accounted for all sales made by him.

It appears that the defendant undertook to make up a more ' formal record upon blanks furnished to or prepared by him, in the tabular form, as set out in the statute. This was made up by transcribing from his other boobs of original entries. In regard to this record the court ruled that “ if the entries on the small boobs were copied substantially into the large boob in good faith, slight and unintentional mistabes in copying would not be a breach of the bond,” provided all the boobs were bept as the defendant had testified, and the deficient information was supplied by the original entries. The mistabes to which this ruling applies consisted of omissions, in the tabular record, to enter the quantity of liquor sold in a few cases of small sales. This tabular record has but one column in which to enter both the bind and quantity. The boobs of original entries were open to inspection, and readily furnished the means of supplying this deficiency. The statute penalty was undoubtedly intended to apply to real and substantial deficiencies, and not to mere clerical and unintentional mistabes, not implying neglect of duty. Upon the whole, we are inclined to thinb that this ruling was justified and proper.

The plaintiffs call our attention to a great number of alleged omissions, which, as is claimed, mabe the record defective and insufficient; and the boobs themselves are referred to. We cannot go into an examination of the boobs to verify these statements. The defendant denies that there are any omissions which are not properly accounted for and explained. A cursory examination of the boobs, such as we were able to give at the hearing, satisfied us that the question whether such omissions did exist was properly submitted to the jury, with such explanations as the defendant could give as to the characters in which the entries were made and his mode of beeping his boobs. No ruling or instruction was asbed or given as to any particular undisputed fact of omission. We can only pass upon the rulings and instructions that were given or refused at the trial. The detached facts stated in the report of the case do not raise any question of law for us to decide, unless there was some ruling upon them at the trial.

As to the omission of the residence of the purchaser and the purpose of the sale, in the original entries, the defendant test! fies that the absence of any such statement on those books indicates a medicinal purpose, and residence in Wenham. As we understand it, both of these omissions were supplied upon the transfer to the tabular form, in all cases ; so that in fact no such omission occurs in the tabular record. The same is true of the kinds of liquors sold. As to the omission, in some cases, to enter the quantity in the tabular record, we may assume that the jury found, under the ruling of the court below, that those omissions were by mere clerical mistake, in the transcribing from the original entries. As to the designation of the purchaser by other than the actual name, we must presume, in the absence of any specific ruling asked or question raised at the trial, that the jury were satisfied that the designation given in each case was made in good faith, and did in fact indicate the real purchaser, and so furnish the requisite information to the proper officers who should inquire. Exceptions overruled.