Isherwood v. Thompson

• Decision Date: 01 February 1915
• Docket Number: No. 11370.,11370.
• Citation: 187 Mo. App. 93,172 S.W. 1181
• Parties: ISHERWOOD v. THOMPSON.
• Court: Missouri Court of Appeals

172 S.W. 1181

187 Mo. A. 93

ISHERWOOD v. THOMPSON.

No. 11370.

Kansas City Court of Appeals. Missouri.

February 1, 1915.

1. INTOXICATING LIQUORS (§ 96) — LICENSES — CREDITOR OF LICENSEE.

One who advanced money to enable a dramshop keeper to pay the license is a mere creditor and cannot, upon the death of the licensee, demand that the unearned portion of the license payment be returned to him.

2. INTOXICATING LIQUORS (§ 96) — LICENSES — REFUND.

Defendant's intestate induced another to procure a license for a dramshop and to run it for interstate's benefit; the intestate to pay the license fees and receive the profits. Held that, upon the death of the licensee before the expiration of the license term, defendant could not, for the benefit of her interstate, recover the unearned portion of the license payment pursuant to Laws 1911, p. 302, for, a liquor license being personal to the licensee, defendant's intestate was working a fraud on the public.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Action by R. L. Isherwood, as administrator, against the City of Chillicothe, which interpleaded. From a judgment for the claimant Annie E. Thompson, administratrix, plaintiff appeals. Reversed and remanded, with directions.

Scott J. Miller, of Chillicothe, for appellant. F. M. Gill, Frank Sheetz and S. L. Sheetz, all of Chillicothe, for respondent.

ELLISON, P. J.

Plaintiff brought an action against the city of Chillicothe for $1,125 alleged to be due him for an unexpired six months' term of a dramshop license issued to Jesse Carroll, deceased, plaintiff's intestate, for the sum of $1,500. Annie E. Thompson, as the administratrix of the estate of her deceased husband, John M. Thompson, claimed to be entitled to the money on the ground that her husband was, in reality, owner of the saloon, and that he paid the license through Carroll; or, stated differently, that he gave the money to Carroll with which to pay the license. The city of Chillicothe admitted that there was due to one or the other of these parties the amount claimed, and brought that sum into court, asking that the claimants be required to interplead. The parties agreed, and interpleas were filed. On trial of these, the court found for interpleader Thompson, and plaintiff has brought the case here.

The claim of each party is based on an act of the Legislature (Laws 1911, p. 302) which provides that:

"In case any licensed dramshop keeper shall die before the expiration of the license granted him, such portion of the county, state, city, town or village tax, paid in such case, as equals the ratio the unexpired part of the term of the license bears to the whole term, shall be repaid to the administrator, executor or the personal representatives of said licensee."

The evidence showed that ...