Brown v. Wieland
| Decision Date | 08 February 1902 |
| Parties | J. T. S. BROWN & SONS v. J. J. WIELAND et al |
| Court | Iowa Supreme Court |
Appeal from Carroll District Court.--HON. S. M. ELWOOD, Judge.
ACTION on a promissory note signed by J. J. Wieland and E. R Wieland, his wife. Defendants allege that the consideration of the note was intoxicating liquors sold in violation of law, and by way of counterclaim the defendant J. J. Wieland seeks to recover from plaintiffs money paid to plaintiffs by said J. J. Wieland for intoxicating liquors unlawfully sold and delivered by plaintiffs to said defendant in this state. The court sustained a demurrer to defendant's counterclaim, and, on the trial to a jury, directed a verdict for defendant on the issue as to the promissory note. From the judgment on this directed verdict, plaintiffs appeal, and defendants appeal from the ruling on demurrer to the counterclaim. The litigation appears to be solely between plaintiffs and J. J. Wieland, and he will be treated as sole defendant.--Affirmed in part, and reversed in part.
Affirmed on plaintiffs' appeal, and on appeal of defendant REVERSED.
Geo. W Bowen and John H. Mosier for plaintiffs.
M. W Beach for defendants.
Plaintiffs, carrying on the business of selling intoxicating liquors as wholesale dealers at Louisville, Ky., received in March, 1899, through their agent in Iowa, an order from defendant for certain kinds and quantities of liquor, to be shipped to him at Audubon, Iowa; the total amount to be paid for the liquors purchased being $ 1,670. This order was taken subject to the approval of plaintiffs, and, if sale had been effected in accordance with its terms, such sale, so far as appears, would have been valid, and the purchase price could have been collected by plaintiffs. But negotiations were subsequently carried on between the parties, by telegram and letter, with reference to change of terms, and there was a question as to whether the order had not been revoked by Wieland. In the meantime the liquors had already been shipped to Audubon under a bill of lading taken by plaintiffs in their own name, with direction to the railroad company to notify defendant; and this bill of lading had been sent to a bank, with direction to deliver it to defendant on his making a certain cash payment, and delivering certain notes, partly secured, for the balance of the purchase price. As a result of the negotiations, new terms of payment were agreed upon; and the bank was directed by plaintiffs to deliver the bill of lading to defendant when he should pay one-fifth of the purchase price in cash, and give notes for the balance, which should mature at various times--two of them to be secured by the signature of his wife, as surety. Defendant paid the money in accordance with this last arrangement, and delivered the notes, duly executed, and received the bill of lading, by means of which he secured from the railroad company the liquors specified therein. Three of the notes have been paid, and this action is brought on the fourth and last of them. The counterclaim is for the recovery of the amount of the cash payment, and of the notes which had already been paid when suit was commenced. The defense to plaintiff's action on the note and the counterclaim are both base upon the provisions of Code, section 2423, the material part of which, as affecting this case, is as follows: * * *"
It is well settled in this state that where a sale of liquor is made outside of the state, though in response to an application secured by an agent in the state, the sale is not invalid on account of the provisions of the section above referred to, and the seller may recover the price of the liquor, although the liquor is shipped by a common carrier into the state, and by the carrier delivered to the purchaser. This is on the theory...
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