Foley v. Leisy Brewing Co.

• Decision Date: 14 February 1902
• Citation: 116 Iowa 176,89 N.W. 230
• Parties: FOLEY v. LEISY BREWING CO. ET AL.
• Court: Iowa Supreme Court

116 Iowa 176

89 N.W. 230

FOLEY

v.LEISY BREWING CO. ET AL.

Supreme Court of Iowa.

Feb. 14, 1902.

Appeal from district court, Polk county; W. F. Conrad, Judge.

This is an action, under section 2423 of the Code, to recover the amount of $7,882.07; being money paid the defendants for intoxicating liquors sold to plaintiff in violation of law. There was a jury trial, resulting in a verdict for defendants. From a judgment rendered thereon, plaintiff appeals. Affirmed.Brennan & Brennan and Spurrier & Maxwell, for appellant.

J. F. Conrad, T. L. Sellers, and O. G. Moen, for appellees.

WATERMAN, J.

A default was entered against defendants, which, upon their application and showing, was set aside by the trial court; and this action is made a ground of complaint. It is said the showing was insufficient in several respects. A very large discretion is vested in the trial court in matters of this kind, and where it sets aside a default, thus allowing a trial on the merits, we will not interfere, unless in a manifest case of abuse. Trust Co. v. Swan, 100 Iowa, 718, 69 N. W. 1065. The trial court may even rest such action upon matters within its own knowledge. Willett v. Millman, 61 Iowa, 123, 15 N. W. 866. The result reached in this case before the jury tends to support the holding of the district court on the motion to set aside the default.

2. The case stated in the petition is that plaintiff purchased the liquor (beer) of the Leisy Brewing Company through Lorenz Ill, its agent, and that the purchase price was paid to said Ill as such agent. The testimony offered by plaintiff was all along this line. In any event, he was entitled to recover on no different theory from that set out in his petition, and this principle is in no wise altered because of the fact that the agency of Ill was denied by defendants. Plaintiff is limited to the case he pleads. We have, then, first to determine whether an agent can be joined with his principal in an action of this nature. The statute above referred to, under which this action is brought, provides that money paid for the purchase in violation of law of intoxicating liquor “shall be held to have been received in violation of law and to have been received upon a valid promise and agreement of the receiver to pay on demand to the person furnishing such consideration the amount of said money. * * *” The person named here as “receiver,” and who is made liable for the return of the money, is evidently the person to whom it belonged when paid by the purchaser. If the latter sent the money by express or by the hands of a private carrier, it is not intended that either of those parties should be liable, on demand, to return to the payer an equal amount. In Schober v. Rosenfield, 75 Iowa, 455, 39 N. W. 706, the action was against an agent who had not received the purchase price, although he had made the sale of the liquor. It was held there could be no recovery, and the question of liability in a case where the money had come into the agent's hands was expressly left undecided. In Sellers v. Arie, 99 Iowa, 515, 68 N. W. 814, cited by appellant, the petition charged defendant as principal. He pleaded as a defense that he was an agent, only. The testimony disclosed that he received the purchase price, and retained 30 to 35 per cent. thereof as his own. This made him a joint principal, for he was a receiver in his own right of a large part of the price paid, and he was held liable as such. The defense of agency will not avail if one is shown to be in fact a joint principal, but there can be no recovery against one whom the plaintiff declares to be an agent only. It is argued on plaintiff's behalf that Ill was a participant in a scheme to enable plaintiff to violate the law. But this is not an action in tort. It arises out of a statutory contract,--that is, a contract which the statute says shall be implied from certain facts,--and is governed by the ordinary rules relating to actions on contracts. It is not the participation in making the sale, nor the handling of the money, that could make Ill a joint principal, but only the receipt by him, as his own, of a part of the purchase price. See Woodward v. Squires, 41 Iowa, 677, and same case in 39 Iowa, 435.

3. This disposes of the case against Ill. We may say further in this connection that, had it been the intent to charge Ill as a joint principal and a seller of the liquors to plaintiff, we doubt if any such demand was made as to entitle plaintiff to maintain this action against him. The written demand introduced in evidence was for the amount of the purchase price of liquors bought of the Leisy Brewing Company.

4. What has been said disposes of the first complaint grounded on the instructions. The next error argued relates to a statement in the charge to the effect that, in order to recover, plaintiff must show that the beer was sold him “directly by the company, or through the defendant Ill as agent of the company.” No substantial...