Hamilton v. Jos. Schlitz Brewing Co.
| Decision Date | 14 December 1905 |
| Citation | 105 N.W. 438,129 Iowa 172 |
| Parties | JOHN HAMILTON, Appellant, v. JOS. SCHLITZ BREWING COMPANY, et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. W. N. TREICHLER, Judge.
ACTION under the statute of this state to recover moneys paid by plaintiff to the defendant Jos. Schlitz Brewing Company as the purchase price of intoxicating liquors, sold, as alleged by said company to plaintiff in this state, contrary to the laws thereof. There was a jury trial, resulting in a verdict and judgment in favor of defendants. The plaintiff appeals.
Reversed.
Rickel Crocker & Tourtellot and John A. Reed, for appellant.
Hubbard Dawley & Wheeler and Miller, Noyes, Miller & Wahl, for appellees.
The statute provision upon which this action is based is a part of the general chapter of the Code prohibiting the traffic in intoxicating liquor in this state on the part of all persons save those holding a permit, or coming within the provisions of the mulct law, so called, and such provision reads as follows: "All payments or compensation for intoxicating liquor sold in violation of this chapter, . . . 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," etc. Code, sec. 2423.
The averments of the petition are that between June 30, 1898, and May 11, 1899, the defendant company, a corporation of the state of Wisconsin, and residing in said state, sold and delivered to plaintiff, at Cedar Rapids, this state, intoxicating liquor, to wit, beer in barrels, kegs, and bottles, for which plaintiff paid to defendant the aggregate sum of $ 5,139.35; that all such beer was sold to plaintiff by defendant without right and in violation of the intoxicating liquor laws of this state. Judgment is demanded accordingly for said sum.
The defendant by its answer admits that between the dates as claimed in the petition it sold beer to the plaintiff, and admits that plaintiff has paid to it on account of such sales, the sum in the aggregate for which judgment is now by him demanded. The defendant denies, however, that said sales and delivery of beer, or any thereof, were made at Cedar Rapids, or in violation of the laws of this state, and alleges that on the contrary all such sales were made and consummated in the state of Wisconsin upon a valid promise and agreement for payment upon contracts legally made in said state of Wisconsin; that all the moneys received by it from plaintiff were paid under said contracts, and were paid and received without violation of law.
Such was the sole issue tendered and upon which the case was tried in the court below. From this, and passing for the moment questions arising out of the conduct of the trial, it becomes apparent that the principal question for our determination is whether the sales of beer upon which the action is primarily bottomed, were made in this state. And particularly does this follow because it is conceded by counsel for appellee in argument that, if so made, they were in violation of the law, and plaintiff may recover as sought in this action. Appellant not only insists that the sales were made in this state, but asserts that if the facts were as contended for by appellee, the taint of illegality attached, so as to support a recovery as prayed in this action. The question arises first upon exception to the ruling of the trial court denying the motion of plaintiff for an instructed verdict in his favor made at the close of all the evidence in the case, and again upon exception to the ruling of the court refusing to set aside the verdict of the jury and to grant a new trial.
I. The motion for an instructed verdict challenged the right of defendant in any event, and as a matter of law, to have a verdict in its favor. In considering this branch of the case we need not stop to pass judgment upon the many assignments of error based upon rulings had in connection with the introduction of the evidence. For the purposes of a motion to direct a verdict, such rulings must be regarded as law of the case. In taking up the ruling upon this motion for review, we are required to give to defendant the benefit of the most favorable construction the evidence as a whole will reasonably bear. Guest v. Burlington, etc., Co., 74 Iowa 457, 38 N.W. 158.
Stated briefly as may be, these facts are disclosed by the record: In September, 1897, the plaintiff, residing in Cedar Rapids, this state, and engaged in the business of dealing in intoxicating liquors under the mulct law, so called, of this state, entered into an agreement in writing with the defendant, in which it is recited that defendant has consented to erect certain buildings and equipments in the city of Cedar Rapids, of which plaintiff is to be intrusted with the care and management, etc. It is then provided that plaintiff etc. Across the margin of the writing was the following: "Not valid until countersigned and sealed at the general office in Milwaukee, Wis." On the back of the writing was this, among other things: The agreement was signed on its face by plaintiff, and by a special agent of the brewing company; and this also appears:
On September 5, 1897, a supplementary agreement was entered into between the same parties, in substance that plaintiff This agreement was indorsed on the face margin and bore the same matter upon the back as the former agreement above set out, and was executed in the same manner as the former agreement. Thereafter orders were sent by plaintiff from Cedar Rapids by mail or wire to defendant at Milwaukee, and the latter delivered beer in accordance with each order to a carrier at Milwaukee, charged the goods to plaintiff on its books of account, and mailed to him an invoice of the shipment.
None of the shipments made prior to June 28, 1898, or payments made on account thereof, are drawn in question in this case, in the sense that any recovery is asked on account thereof. It appears, however, from the correspondence between the parties, that the brewing company professed considerable annoyance on account of plaintiff failing to keep within the credit limit prescribed by the agreement, and by failing to make remittances when due; and it followed that acceptance of orders were frequently delayed until payments as demanded had been made. It does not appear, however, that defendant at any time made declaration of its purpose to terminate the relations under the agreement, nor did plaintiff in any way suggest a desire upon his part that the relationship be brought to an end. His concern seems to have been confined solely to an extension of his credit limit. On June 23, 1898, plaintiff wired defendant: And two days later he wrote defendant, rehearsing his financial troubles, and stating in substance that his lack of capital would not permit him to continue present arrangements, unless accorded an extension of his line of credit. He speaks of having given one Stewart, standing in the relation to him of a surety, a bill of sale to protect him, and to avoid proceedings on the part of other creditors. This statement is then made: "We do not want to quit the business and will not do so unless this arrangement of extra capital be an absolute impossibility." The letter closes thus: "Kindly let us know if this thing can be arranged, and, if so, in what shape it will be?"
Defendant did not reply to the letter, but on June 27th it sent a traveling agent, one Schmidt, to Cedar Rapids. On that day and as one result, at least, of the visit, Schmidt wired the brewing company as follows: "If possible today bill of lading attached Hamilton five barrels, eighty halves," etc. In response to this the defendant placed on board car at Milwaukee the quantity of beer as called for in the telegram, and took the bill of lading in the name of Paul Bodenback, Cedar Rapids, Iowa with notation, "Notify J. Hamilton." The bill of lading was at once indorsed in blank by Bodenback, who, it appears, was manager of the defendant...
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