Goodwin v. Nedjip

• Decision Date: 30 August 1918
• Parties: GOODWIN v. NEDJIP et al.
• Court: Maine Supreme Court

104 A. 519

GOODWIN

v. NEDJIP et al.

Supreme Judicial Court of Maine.

Aug. 30, 1918.

Exceptions from Supreme Judicial Court, York County, at Law.

Action by Ernest A. Goodwin against Hassan Nedjip and others. On defendants' exceptions from the Supreme Judicial Court. Exceptions overruled, and judgment ordered for plaintiff.

Argued before SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.

Leroy Haley, of Biddeford, for plaintiff.

Clarence Webber and Robert B. Seidel, both of Biddeford, for defendants.

HANSON, J. Action of debt upon a victualer's bond, before the court upon the following bill of exceptions:

"This was an action of debt upon a victualer's bond, for which provision is made in chapter 31, § 2, of the Revised Statutes. The defendants appeared severally, and jointly craved oyer of the declaration and the conditions of the bond. The conditions of the bond were recited in defendants' plea. Thereupon defendants pleaded performance of such conditions. The plaintiff replied, assigning as a breach of such conditions that the principal in the bond had been convicted of the offense of a single sale of intoxicating liquor subsequent to the date of the bond and prior to the date of the writ. Defendants rejoined as follows:

"'The said defendants, as to the said replication to their said plea say that he, the said Hassan Nedjip, has not, at any time since the execution of the writing obligatory declared on in the plaintiff's writ, violated any law of this state relating to intoxicating liquors in, about, or around the premises mentioned in said writing obligatory, or any of the appurtenances thereof, and this they are ready to verify.'

"To which rejoinder plaintiff demurred, and the demurrer was joined by defendants. The presiding justice sustained the demurrer, to which ruling the said defendants except, and pray that their exceptions may be allowed."

The condition of the bond is that:

"Whereas, the above-bounden Hassan Nedjip has been duly licensed as a common victualer at No. 1 Main street, within said city [Biddeford], until the day succeeding the first Monday of May next: Now, if in all respects he shall conform to the provisions of law relating to the business for which he is licensed, and to the rules and regulations as provided by the licensing board in reference thereto, and shall not violate any law of the state relating to intoxicating liquors, then this obligation shall be void; otherwise, shall remain in full force."

The contention here is over the following clause in the condition of the bond: "And shall not violate any law of the state relating to intoxicating liquors." And but one question is raised: Does the bond apply to the place licensed, only? The defendants claim that such clause is to be interpreted as meaning "in, about, or around the premises licensed," and cite and rely upon Clements v. Smith, 128 App. Div. 859, 113 N. Y. Supp. 55, where action was brought against the principal and the Federal Surety Company under a bond issued by the latter under the provisions of the Liquor Tax Law. The bond was in the usual form, and, after reciting the purpose and location of the business, provides:

"That if the said liquor tax certificate applied for is given unto the said principal, and the said principal will not, while the business for which such liquor tax certificate is given shall be carried on, suffer or permit any gambling to be done in the place designated by the liquor tax certificate in which the traffic in liquors is to he carried on, or in any yard, booth, garden, or any other place appertaining thereto or connected therewith, or suffer or permit such premises to become disorderly, and will not violate any of the provisions of the liquor tax law, then the above obligation to be void; otherwise, to remain in full force and virtue."

The trial court directed a verdict for the defendant, and the decision of the appellate court sustained the action of the lower court, upon the ground...