Myers v. Carr

• Decision Date: 10 November 1863
• Citation: 12 Mich. 63
• Court: Michigan Supreme Court
• Parties: Lawrence Myers and another v. David Carr

12 Mich. 63

Lawrence Myers and another v. David Carr

Supreme Court of Michigan

November 10, 1863

Heard October 8, 1863; October 9, 1863. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case made after judgment, from Washtenaw Circuit.

The declaration was upon a promissory note, with the common counts. Plea, the general issue, with notice "that the defendant will prove, on the trial of this cause, as a defense to said suit, that the promissory note, a copy of which is appended to said declaration, was given for the purchase price of certain intoxicating liquors, contrary to the statute in such case made and provided, and that the said plaintiffs are not bona fide holders of said promissory note."

On the trial, plaintiffs put the note in evidence. It was dated at Ypsilanti, April 9, 1862, and payable to the order of plaintiffs, at a banking office in Ypsilanti, on the 14th of November after date, and had been indorsed by the plaintiffs in blank. After showing that the amount due on the note was $ 213.96, the plaintiffs rested.

In his defense, the defendant testified as follows: "I gave this note for a bill of liquors, purporting to be spirituous or intoxicating liquors." Plaintiffs' counsel objected to this evidence, on the ground that, under his plea and notice, the defendant could not set up the provisions of the prohibitory liquor law of this state; but the evidence was received by the court. The defendant continued his testimony as follows:

"These liquors were in the city of Ypsilanti, when I made this note and took the liquors. They had been there from the fall before. Blodget had wanted me to buy the liquors--went to the depot for that purpose. I bought a barrel of rum, thirty-five gallons, a cask of wine, and a barrel of brandy.

"He, Blodget, was anxious to sell them to me; I asked terms; said he would sell on usual terms; did not buy them then. It run along till I was going down to inauguration, when Blodget gave me a letter to the plaintiffs; I stopped at New York city; saw some one who represented himself to be Myers, jr. I did not buy them in New York of this Myers, jr.; I bought them when I came back, of Blodget. I met a person in New York who said he was Myers, jr.; he took me up stairs to show me some samples. He said they sold all their liquors by sample. He asked clerk when liquor was shipped to Wiard. I tasted the sample liquor. He said the Wiard bill was vintage of 1858, and this was same.

"When I came back to Ypsilanti, found Blodget had sold gin; tasted them, thought they were not as good as sample. Blodget insisted I should buy them; Joseph Martin looked at them. Doctor Ashley was there, and made remarks which discouraged me. The wine was absolutely worthless--brandy good for nothing--rum so worthless I used to give it away to any one dry enough to drink it.

"The man I saw wrote a letter and gave to me; I brought this letter to Ypsilanti and delivered it to Blodget. After I bought the liquor of Blodget, he asked me for it."

Cross-examination: "I think Joslin was present when I brought the letter into the office. The day I went up, I had the letter in my memorandum book--showed the letter to Blodget, and then put it back, and afterwards gave it to him when he asked me for it. I am not positive whether I handed Joslin the letter. I don't know whether I showed them (Joslin & Blodget) the letter before I purchased the liquor. I think Blodget stated they had received a letter from plaintiffs informing them of my visit. He read it over to me in New York, and I told him I should not purchase the liquors till I had examined them. He said, that as the young man had copied the letter, let it go, and he would be satisfied with any arrangement Mr. Blodget should make. As soon as we got through measuring and tasting the liquors, I loaded them up."

This was all the evidence offered by the defendant, and here he rested his defense.

Thereupon the plaintiffs called as a witness Chauncey Joslin, who testified as follows:

"This is the letter that Mr. Carr brought to my office; the signature is in the handwriting of Lawrence Myers. He delivered the letter in an unsealed envelope, and I read it. I handed the letter to Blodget, and he apparently read it. Blodget told him he had not got the pipe of gin. Carr stated he had bought these liquors of Myers in New York, and had brought this letter to show us about the delivery, and got time that we would not give, and some other terms. He proposed to go and get the liquors. We talked then, that by instructions of the letter we were to deliver the liquors to him, when regauged. He and Blodget left the office together, and were gone from one to two hours, and came back, and Blodget drew note, and Carr signed it, and Blodget asked about the letter, and Carr handed it out.

"I suppose the bill sold to Wiard contained a pipe of gin. The gin was sold by Blodget to Moorman. 'Outage' means leakage, shrinkage. What he bought was the Wiard bill less outage, and the pipe of gin."

The letter referred to by the witnesses was then read in evidence, as follows:

"New York, March 15th, 1861.

"Messrs. Joslin & Blodget, Ypsilanti:

"Mr. David Carr, of Belleville, called on us in reference to the bill of merchandise forwarded to C. G. Wiard, and stored by you. We have sold it to him at the invoice cost, say $ 365, on eight months' credit from date of sale (yesterday), and seven per cent interest; he paying freight and charges to your place, and we paying the storage bill; any excess of outage, over the original outage, we will allow, and solicit you to receive note and forward it to us. Yours truly,

"Lawrence Myers & Co."

A. C. Blodget was also called for the plaintiffs, and testified as follows:

"Carr brought this letter to our office, and presented it. I told him he could not have the pipe of gin; went up and took off wax and tasted them, and he finally concluded to take them. They were delivered to him, and he put them in wagon and took them away; went to office and gave the note for the amount of New York bill, freights added, less outage and gin.

"Carr took them exactly as in that bill, with freights added, except the gin. Carr stated that he doubted whether they were as good as sample tasted in New York. The only doubt he had was whether he would take them, as the gin was gone; said he wanted the gin. Lawrence Myers resides in New York, and Pike in Ohio."

Joseph Martin, testified as follows:

"I was present. Carr inspected the liquors; I think he came into my shop. The rum he doubted whether it was as good as mine. It was a lower priced rum than mine but was a fair article of its kind."

This was all the testimony offered by the plaintiffs, and they then withdrew the note, and relied upon the common counts in their declaration.

From the foregoing testimony the court found the following facts:

First. That the plaintiffs were residents of the states of New York and Ohio, and that the sale of the liquors in question was made in the city of New York.

Second. That a failure of consideration as to the quality of the goods was not sufficiently proven.

Third. That the value of the goods and the interest thereon on the 19th day of June, 1863, was two hundred and thirteen dollars and ninety-six cents; for which amount judgment was rendered for plaintiffs.

Judgment of the court reversed, and judgment entered for defendant, with his costs in both courts.

Norris & Ninde, for defendant:

1. The brandy and wine are proven to have been worthless. This partial failure of consideration should have affected the finding.

2. The note proven and upon which the plaintiff rested his case, with its interest, is the exact sum of the verdict. This note was withdrawn. There is, then, no proof whatever of number of gallons, or price per gallon, or of the leakage, or outage, or freights, or value of gin sold, or its amount, or of the charges, or of storage. There is no data in the case for the damages, on the count for goods sold and delivered.

3. Interest should not have been allowed. The pleadings and evidence do not justify it: 7 Rich. 118.

4. The contract of sale of these liquors, and the sale, was void. If made in this state, this will be conceded.

As a matter of fact, the sale was made (consummated) in this state: 2 Pars. Cont., 437, 441; 10 Me. 400; 2 Ired. 36.

As a matter of law, it was made subject to the law of this state, because the place of payment and performance is the place of contract, and these liquors were to be paid for at Ypsilanti: 13 Mass. 23; 17 Johns. 511; 19 N. Y., 436; 7 B. Monr., 577; 8 B. Monr., 306; 6 Pet. 202; 13 Pet. 77; 5 McLean 448; 30 Miss. 65; 3 Strob. 33; 3 Story 474; 2 Pars. Cont., 95- 100-102; Story Confl. L., § 280; Story Notes, § 104 et seq.

If the sale had been made in New York--of liquors in ease, when sold--and the laws of New York had been proven, the liquors delivered in New York, and the money to be paid in that state (all which suppositions are negatived in this case), even then it would be a contract injurious to the interests of the citizens of this state, and within the rule in Story Confl. Laws, § 244, as applied to western prohibitory liquor laws in 6 Clark (Iowa), 410.

5. No judgment can be legally had on common counts for goods sold and delivered, if it appear in evidence that a negotiable promissory note was given by the purchaser for such goods and received and indorsed in blank by the seller, which note, in fixing the place of payment, has given a defense to the purchaser and maker, not known to the place of sale, or to the original contract of sale. If for any legal cause you can not recover on the note, you can not recover on the original cause of action: 2 Am. Lead. Cas.,...