Durkee v. Moses

• Decision Date: 11 March 1892
• Citation: 67 N.H. 115,23 A. 793
• Parties: DURKEE v. MOSES et al. COSHLAND et al. v. SAME. BOEHM et al. v. MCINTIRE.
• Court: New Hampshire Supreme Court

23 A. 793

67 N.H. 115

DURKEE

v. MOSES et al.

COSHLAND et al.

v. SAME.

BOEHM et al.

v. MCINTIRE.

Supreme Court of New Hampshire. Merrimack.

March 11, 1892.

Case reserved from Merrimack county; before Justice Blodgett.

Assumpsit by L. C. Durkee and G. F. Coshland & Co. against J S. Moses & Co., and by Samuel C. Boehm & Co. against P. McIntire, for intoxicating liquors sold and delivered. Judgment for plaintiffs.

R. E. Walker, for plaintiffs.

Daniel B. Donovan and Albin & Martin, for defendants.

CARPENTER, J. The plaintiffs are entitled to recover for the liquors ordered by the defendants, and delivered to them in Boston and New York. Their mere knowledge of the defendants' purpose to bring the liquors into this state, and sell them here in violation of law, does not make the contract invalid. Hill v. Spear, 50 N. H. 253; Fisher v. Lord, 63 N. H. 514, 3 Atl. Rep. 927. The rest of the liquors were delivered by the plaintiffs in New York and Boston upon orders taken of the defendants here by the plaintiffs' agents, who knew, or had reasonable cause to believe, the liquors would be brought here and sold in violation of law. "If any person shall within this state solicit or take any order for any spirituous liquor, to be delivered at any wharf, depot, or other places without this state, knowing or having reasonable cause to believe that, if so delivered, the same will be transported to this state, and sold in violation of the laws thereof, he shall be fined, "etc. Gen. Laws, c. 109, § 18. In Dunbar v. Locke, 62 N. H. 442, it was held that the vendor of liquors sold upon orders taken by his agents in violation of this statute cannot, in our courts, recover the contract price, and this decision was affirmed in Jones v. Surprise, 64 N. H. 243, 9 Atl. Rep. 384. It was not claimed or suggested in either case that the statute was in conflict with the provision of the federal constitution authorizing the congress to regulate commerce among the states, and the question was not considered. The reason the plaintiffs did not move the question was doubtless because they understood the validity, under the federal constitution, of a state statute prohibiting within its borders the sale in the original package, by the importer, of spirituous liquors imported from other states, or otherwise discouraging or restricting the importation of such liquors from other states, to be established conclusively by the decisions of the federal supreme court. In Brown v. Maryland, 12 Wheat. 419, it was held that a state can impose no restrictions upon the sale in the original package by the importer of goods imported from foreign countries under the authority of congress, and in Peirce v. New Hampshire, 5 How. 504, it was held that a state may prohibit the sale in the original package, by the importer, of spirituous liquors imported from another state, on the ground, among others, that congress had not exercised its power under the constitution to regulate interstate commerce, as it had foreign commerce. In other words, the sale in the original package, by the importer from foreign lands, could not, while the like sale of...