Danciger v. Cooley

• Decision Date: 06 May 1916
• Docket Number: 19,945
• Citation: 98 Kan. 38,157 P. 453
• Parties: ABE DANCIGER et al., Partners, etc., Appellants, v. D. G. COOLEY, Appellee
• Court: Kansas Supreme Court

157 P. 453

98 Kan. 38

ABE DANCIGER et al., Partners, etc., Appellants, v. D. G. COOLEY, Appellee

No. 19,945

Supreme Court of Kansas

May 6, 1916

Decided, January, 1916.

Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. VERDICT AND JUDGMENT--Controversy Settled. A controversy as to the application of a payment made by a debtor held to be settled by the verdict and judgment.

2. AGENCY--For Collecting Liquor Bills--Violation of Law--No Recovery of Amount Collected. A principal who employs an agent to make collections under circumstances which make the act a violation of the criminal law can not maintain an action for the recovery of the amount collected.

3. LIQUOR LAWS--Presumption as to Laws of Missouri. Under the circumstances of this case it will not be presumed that the sale of intoxicating liquors is forbidden by the laws of Missouri.

4. LIQUOR SHIPPED TO ORDER OF SHIPPER--Bill of Lading and Liquor Delivered to Another for His Own Use--Unlawful. One who ships liquor to his own order, and delivers the bill of lading to another to enable him to receive it for his own use, thereby violates the provision of the Kansas statute forbidding a person to whom intoxicating liquor has been consigned to give to any other person an order upon the carrier for it, with the purpose of enabling him to receive it for himself.

5. SAME--No Interference with Interstate Commerce. The statute referred to in the foregoing paragraph, as applied to a shipment from another state into this, under the circumstances there stated, is not invalid as involving an undue interference with interstate commerce, irrespective of the provisions of the Webb-Kenyon act.

6. SAME--Construction of Federal Statutes Relating to Importation of Liquors from one State to Another. Where liquor is shipped into this state to the order of the shipper, his representative who collects the purchase price and delivers to the purchaser the bill of lading, thereby violates the act of congress which provides a punishment for any person who, in connection with the interstate transportation of intoxicating liquor, shall collect the purchase price from the consignee, or act as the agent of the buyer for the purpose of completing the sale thereof, saving only in the actual transportation and delivery of the same.

R. E. Jacobs, Harry L. Jacobs, both of Kansas City, Mo., J. P. McLaughlin, of Osage City, and C. P. Cowgill, of Topeka, for the appellants.

Otis E. Hungate, of Topeka, for the appellee.

OPINION

MASON, J.

Danciger Brothers sued D. G. Cooley upon two accounts for liquor sold to him, in one instance by the plaintiffs and in the other by a dealer who assigned the claim to the plaintiffs; and also upon two similar accounts for collections made by him, for the plaintiffs and the other dealer, from purchasers of liquor. The defendant pleaded payment of the accounts for liquor sold to him, and this issue was submitted to a jury, which found in his favor. Upon the other accounts the court sustained a demurrer to the plaintiffs' evidence. Judgment was rendered for the defendant, from which the plaintiffs appeal.

(1) The controversy regarding payment depended upon what application was made of a remittance by the defendant. The defendant's claim was that he had directed that it should be applied to the accounts for liquor sold to himself. The plaintiffs contended that no specific directions had been given and that application had been properly made upon the collection account. The court instructed on the law of the matter substantially as agreed to by the parties, and the verdict of the jury is conclusive upon this feature of the case, which is not affected by the legal questions hereinafter discussed. This part of the judgment is affirmed, and constitutes an adjudication that the remittance referred to should have been applied first to the personal account of the defendant for liquor purchased by him. If the plaintiffs should finally prevail upon the other branch of the case they would be entitled to a larger recovery thereon to the extent of the amount so applied.

(2) The demurrer to the plaintiff's evidence upon the other branch of the case was sustained upon the theory that the liquor dealers and the defendant were engaged in violating laws relating to the liquor traffic, that the collections made were the proceeds of such violation, and that the courts will not lend their aid to the apportionment of the profits of the illegal transaction. The claim assigned to the plaintiffs is of the same character in all respects as that which accrued to them originally, and a description of the circumstances out of which the latter grew will be sufficient. The plaintiffs, according to their evidence, were engaged in selling beer and whisky in Kansas City, Mo. They received a number of written orders from customers in Topeka. In each instance they shipped the liquor by freight to their own order, mailing the bill of lading to the defendant, with instructions to deliver it to the person who sent the order, upon payment of an accompanying draft for the price. This arrangement was made because the banks had refused to collect their drafts. The defendant's commission for his services varied with the class of goods, but averaged a little over twenty-five per cent of the collections.

If the resulting transactions amounted to the illegal sale of liquor in Kansas, or otherwise violated the penal laws of the state or nation, no recovery of the amount collected by the plaintiff can be had. There is a difference of judicial opinion on the question whether one who as the agent or partner of a wrongdoer participates in a contract in violation of law will be required to account to his principal or associate for any pro- of it that have come into his hands. (15 A. & E. Encycl. of L. 1009-1011; 9 Cyc. 557-560; Note, 113 Am. St. Rep. 732-734.) But in this state the matter is settled by the decision in Alexander v. Barker, 64 Kan. 396, 67 P. 829, where it was said:

"The rule is that when persons enter into an illegal contract, and one of them receives the profits or other advantages arising therefrom, the courts will not compel him to account therefor, as in such case the right of the other to a share therein, or to the whole of it, if such were the agreement, would have to be based upon the illegal contract, and to permit him to recover it would be, in reality, an enforcement of the illegal scheme. The law therefore leaves him where it finds him." (p. 402.)

(3) The defendant suggests that even if the sale of the liquor is regarded as completed in Missouri, it must be treated as illegal because, although the plaintiffs pleaded that the law of that state permits such sales, no proof was offered on the subject, and in the absence of a showing to the contrary the court must presume statutes similar to our own to have been adopted there. (Bershears v. Nelson, 80 Kan. 194, 101 P. 1011.) The general denial of the answer can hardly be regarded as intended to assert that the sale of intoxicating liquors is forbidden by the laws of Missouri. The trial court obviously did not put that construction on it or the entire case would have been taken from the jury. The powers of this court on review have been broadened since the decision last cited, by a provision of the present code that "in any case pending before it the court shall render such final judgment as it deems that justice requires." (Civ. Code, § 581; Ratliff v. Railroad Co., 86 Kan. 938, 122 P. 1023.) The policy of another state with respect to a matter of so much public interest as that relating to the control of the liquor traffic is so widely and generally known that it is hardly to be classed as falling within the ordinary presumption applied to local statutes. The legal questions presented will be considered in the light of the known fact that Missouri is not a prohibition state. However, if the sale was an integral part of an entire transaction in interstate commerce, it would seem to be protected against interference by either state.

(4) The defendant argues that as the plaintiffs shipped the liquor to their own order, and retained control of it until the delivery of the bill of lading, upon payment of the purchase price, the title passed in Kansas, and the sales were made in this state and were therefore illegal. The Webb-Kenyon act (Part 1, 37 U.S....