Curran v. Downs
| Decision Date | 10 June 1879 |
| Citation | 7 Mo.App. 329 |
| Parties | PETER CURRAN ET AL., Appellants, v. HUDSON L. DOWNS, ET AL., Respondents. |
| Court | Missouri Court of Appeals |
1. Where one permits distilled spirits to be removed from his distillery and sold in fraud of the revenue law, he cannot recover for the spirits thus sold.
2. A particular sentence disconnected with its context, and in disaccord with the whole tenor of the testimony on the point, will not support an instruction based upon it.
3. Where the plaintiff and his book-keeper shared the gains from the sale of whiskey sold in fraud of the revenue, and the sales were effected through the book-keeper as agent of his employer, the knowledge of the agent was the knowledge of his principal, and the fact that the book-keeper was the more immediate participant in the fraud will not enable his partner in the transaction to recover his share of the illicit gains.
APPEAL from St. Louis Circuit Court.
Affirmed.
A. R. TAYLOR and J. A. BEAL, for appellant, cited: Curran v. Downs, 3 Mo. App. 468.
E. T. FARISH, for respondent.
The present cause of action has been before this court. Curran v. Downs, 3 Mo. App. 468. When that case went back, the plaintiff took a nonsuit, brought the present action, based upon the sale and delivery of the same whiskey, and the defendant pleaded substantially the same matter which gave rise to the legal question decided by this court. Upon the trial below there was a verdict for the defendant Spalding, the suit having been dismissed as to the defendant Downs. The present appeal rests on the following grounds: The plaintiff testified upon the trial that he did not personally know of the sale of the whiskey until after it was sold; that one O'Donnell, his book-keeper, acted for the plaintiff in making the sale and delivery; that “plaintiff is not able to state whether or not the whiskey in question was sold and delivered without the government tax having been paid.” On the basis of such testimony, it is contended that there was evidence tending to show a sale of the whiskey, which, so far as the plaintiff was concerned, involved no violation of law, and was made without any agreement on his part to remove the whiskey without paying the government tax. The plaintiff accordingly complains of the court's refusal to instruct the jury that although they should believe that the whiskey was removed from the distillery without the tax being paid, or if the jury believe the book-keeper sold or delivered the whiskey without informing the plaintiff that it was sold and to be removed without paying the tax, then the defence failed that the whiskey was removed from the warehouse before the tax was paid.
There is no basis either of fact or of law for the plaintiff's objection. The only inference that can be drawn from the plaintiff's own testimony is that he was a party to this fraud upon the government, as the jury found that he was. A particular sentence, in itself ambiguous, is not to be wrenched from the context of a plaintiff's testimony; and an instruction based upon the supposition that such testimony stood by itself would of course have a false foundation. A witness's testimony, especially that of a plaintiff making out his own case, is to be taken together; and it by no means follows that every proposition he utters, even in itself...
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Priddy v. Mackenzie
... ... partner in the ordinary business of the firm on the ground ... that he did not know of such acts. [Curran v. Downs, 7 ... Mo.App. 329.] ... In ... discussing this question, the Supreme Court of Georgia used ... this language: "It is ... ...
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Priddy et al. v. MacKenzie
...liability for the acts of his partner in the ordinary business of the firm on the ground that he did not know of such acts. Curran v. Downs, 7 Mo. App. 329. In discussing this question, the Supreme Court of Georgia used this language: "It is urged upon us that as Judge Underwood was absent ......
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