Faulkner v. Town Of South Boston
| Decision Date | 19 March 1925 |
| Citation | 127 S.E. 380 |
| Parties | FAULKNER. v. TOWN OF SOUTH BOSTON. |
| Court | Virginia Supreme Court |
[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Sale.]
[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Second; Subsequent.]
Error to Circuit Court, Halifax County.
Hildred Faulkner was convicted for a second violation of the prohibition ordinance of the Town of South Boston, and he brings error. Reversed and remanded.
William Leigh, Jr., of Halifax, for plaintiff in error.
Frank L. McKinney, of South Boston, for defendant in error.
On an appeal from a judgment of the mayor of the town of South Boston, Va.. sentencing Hildred Faulkner to jail for 12 months and to pay a fine of $500 for a second violation of the prohibition ordinance of the town of South Boston, a jury in the circuit court of Halifax county found him guilty and fixed his punishment at confinement in jail for 12 months and a fine of $500. This writ of error is to the judgment entered upon that verdict.
The undisputed facts are these: The jurisdiction of the mayor of the town of South Boston, Va., in criminal cases, extends one mile beyond the corporate limits of the town, but no further. On September 12, 1923, Hildred Faulkner, at a point more than one mile from the corporate limits of the town, agreed to deliver to one H. E. Sapphire by one Archie Banks three gallons of corn whisky, and then and there received from Sapphire the sum of $30, the agreed price of the whisky. Later, on the same day at another point in Halifax county, previously designated by Faulkner to Sapphire, less than a mile from the corporate limits of the town, Archie Banks, agent of Faulkner, delivered to Sapphire the three gallons of whisky.
Hildred Faulkner had been previously convicted by the mayor of the town of South Boston of transporting ardent spirits, on April 5, 1919, in violation of the then prohibition ordinance of the town, and fined $100. His reputation as a violator of the prohibition law was notoriously bad. The prohibition ordinance of the town of South Boston in force September 12, 1923, consisted of a caption and 42 sections, numbered consecutively from 1 to 42, and the same is made a part of the record in the case.
The accused contends that the verdict and judgment should be reversed and set aside, because (1) the town of South Boston did not have jurisdiction over the offense which the evidence shows was committed; and (2) the offense proven to have been committed wasnot a second offense against the prohibition ordinance of the town of South Boston.
The charge in the warrant is that the accused did "unlawfully sell ardent spirits within the police jurisdiction of the town of South Boston, Va., to one H. B. Sapphire; this being a second offense, as he was convicted of violating the prohibition ordinances of the said town on the 5th day of April, 1919, and fined $100."
The first assignment of error raises the question whether the sale of the whisky was consummated before it was delivered to Sapphire within one mile of the corporate limits of the town.
A sale is a contract founded on a valuable consideration by which the absolute or general property in the subject of the sale is transferred from the seller to the buyer.
The time of the passing of the property may be fixed by the terms of the contract, but where it is not it will be determined, generally speaking, by the intentions of the parties, as gathered from the facts and circumstances disclosed by the evidence. Where there is no manifestation of intention, resort may be had to the presumptions of law arising out of the facts in the case. If the specific thing is agreed on, and is ready for immediate delivery, the presumption of law, where "there is no manifestation of intention, is that the contract is an actual sale; but, where the goods have not been specified, the contract is only executory. 1 Benjamin on Sales, § 311, p. 324.
In the instant case, no specific whisky was sold. The contract was for three gallons of corn whisky. Whether the whisky was manufactured after the money was paid, was taken from a larger quantity already manufactured, or was afterwards purchased by Faulkner from some third party does not appear.
Under these circumstances, there being no specific identification of the whisky, the contract was necessarily executory until the whisky was appropriated to the contract. There could be no appropriation of the whisky to the contract until there was a selection of it by the seller and the adoption of this act by the purchaser, which could not occur until the delivery of the whisky to Sapphire.
In George Lochnar v. State of Maryland, 111 Md. 660. 76 A. 586, 19 Ann. Cas. 579, the court held that where the seller of intoxicating liquors delivers them in person or by his agent to the purchaser, without the intervention of a carrier, the place of delivery is the place of sale, and that it made no difference that the agreement to sell was made elsewhere. Citing State v. Houts, 36 Mo. App. 265, and Commonwealth v. Greenfield, 121 Mass. 40.
In Commonwealth v. Bottom, 140 Ky. 212, 130 S. W. 1091, the Court of Appeals of Ken tucky held that where whisky is ordered from another town, and directed to be delivered to a carrier for shipment to the buyer, title passes on delivery to the carrier; but, where the seller's agent conveys it in person, the sale is made on delivery to the buyer.
It follows that there was no sale of the whisky until its delivery...
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