Com. v. Adair

• Decision Date: 05 January 1906
• Citation: 121 Ky. 689,89 S.W. 1130
• Parties: COMMONWEALTH v. ADAIR.
• Court: Kentucky Court of Appeals

89 S.W. 1130

121 Ky. 689

COMMONWEALTH v. ADAIR.

Court of Appeals of Kentucky.

January 5, 1906

Appeal from Circuit Court, Graves County.

"To be officially reported."

Al Adair was convicted of a violation of the local option law and the commonwealth appeals. Opinion rendered.

N. B Hays, Atty. Gen., W. H. Hester, Com. Atty., and C. H. Morris for the Commonwealth. B. C. Seay, for appellee.

O'REAR J.

The local option law is in force in the city of Mayfield, in Graves county. Appellee conducted a wholesale beer warehouse just outside the corporate limits of the city. The prosecuting witness ordered of appellee, Adair, by telephone, a keg of beer, to be delivered in the city. Appellee's delivery wagon and driver brought the beer to the witness, and delivered it to him in the city. The driver, who was authorized to collect the price of the beer, refused to accept it in the city, but asked the witness to accompany him across the line of the city limits, where he did receive it. The circuit court upon this evidence ordered a verdict for the defendant, and the commonwealth prosecutes this appeal to have the law of the case settled.

Under the existing statute no one, not a manufacturer, can lawfully sell beer within territory in this state where local option is in force. We do not mean to say that a manufacturer can sell his product of beer in a local option district other than one in which his brewery may be located. That question is not presented in this case. Appellee was not a manufacturer of beer. The beer which he sold was brewed by the Cook Brewing Company, whose brewery was located elsewhere than in Mayfield. The action of the circuit court seems to have been based upon the supposition that the sale was not complete till the beer was paid for; and as that part of the transaction occurred, not in the city, the local option territory, the offense was not committed within the prohibition district. Beer sold by the keg is a completed sale when the beer is delivered, in the absence of an agreement to the contrary. The sale, wherever negotiated, is not completed till there is a delivery, where delivery is contemplated by the parties as a condition of the transaction. The title to a personal chattel remains in the seller, if he is required by the contract to forward or deliver the article, until the goods are delivered in accordance with the contract. Miller v. Somerset Cedar Post Co. (Ky.) 51 S.W. 615; Hagins v. Combs, 102 Ky. 165, 43 S.W. 222. If prepayment is made a condition precedent of the sale, it of course would have to occur or be waived before the title passed. But, in the absence of such condition in the contract, the fact of payment has no bearing on the question whether the title was passed by the transaction.

These general principles, applicable to dealings in personal chattels, apply to sales of beer or other...