J. L. Taylor & Co. v. Pickett

Decision Date05 December 1879
Citation52 Iowa 467,3 N.W. 514
CourtIowa Supreme Court
PartiesJ. L. TAYLOR & CO., APPELLANTS, v. J. C. PICKETT AND ANOTHER, APPELLEES.

OPINION TEXT STARTS HERE

Appeal from Wapello circuit court.

This action was commenced in February, 1877, upon a note executed by the defendants to plaintiffs for $286.42, dated April 6, 1876, due in nine months. After the action was commenced the plaintiffs obtained an attachment against the property of the defendant Evans. The defendants answered as follows: First, both say that the note was given for intoxicating liquors sold to Pickett in violation of law. Second, Pickett sets up the sale of intoxicating liquors to him at various times in 1875 and 1876, in violation of law, and on valid promise to repay the purchase price amounting to $579. Third, Evans alleges that he signed the note as surety; that Pickett promised to obtain a co-surety before delivering the note; that he did not do this, but delivered the note in violation of his agreement, all of which was known to plaintiffs. Fourth, Evans, also, by way of cross-action, claims damages for the wrongful suing out of the attachment.

There was a jury trial and a special finding as follows: That Evans was damaged in the sum of $82.70 by the wrongful suing out of the attachment, and that part of the consideration of the note, to-wit, $46.50, was for intoxicating liquors sold in violation of law. Thereupon the plaintiffs moved the court for judgment against the defendant Pickett for the amount of the note sued upon, less $46.50, and against the defendant Evans for the amount of the note less $46.50, and also less $82.70, for the reason that the note was admitted, and no verdict on the general issue was found for the defendants. The plaintiffs also moved the court to set aside the verdict and grant a new trial. The court overruled both motions, and entered a judgment against plaintiffs on the note and for $59.60 costs, and in favor of Evans against plaintiffs on the attachment bond for $82.70. The plaintiffs appeal.Wm. McNett and Wright, Gatch & Wright, for appellants.

John B. Ennis, for appellees.

DAY, J.

1. The defendants, in support of the allegation of their answer that plaintiffs had sold to the defendant Pickett intoxicating liquors in violation of law, offered in evidence an indictment found in the Mahaska district court, April 28, 1876, charging Pickett with nuisance committed by the sale of intoxicating liquors. The plaintiffs objected to the introduction of this evidence because the indictment was found long after the note sued upon was given, and is immaterial and incompetent as evidence. The objection was overruled, and the indictment was admitted in evidence, as stated in the abstract, to show the fact of the sale of the liquors. This action of the court the plaintiffs assign as error. The indictment was clearly inadmissible to establish any fact in this case. In admitting it in evidence the court erred.

2. The plaintiffs introduced licenses from the board of supervisors of Wapello county, authorizing them to buy and sell intoxicating liquors for the purposes named in the statute. The statute provides that the person obtaining a permit to sell may sell in the county of his residence, and that the permit shall specify the house in which intoxicating liquors may be sold. Code, §§ 1526 and 1531. The liquors sold to the defendants were ordered by them through an agent of the plaintiffs at New Sharon, in Mahaska county. Upon this branch of the case the court instructed the jury as follows:

“22. A party holding a permit has no right to sell at other places than that which the permit authorizes him so to do, and a sale made at some other place would be illegal; but when an order is sent by mail to the house, and the order filled at the house, then it would be a sale at the house where the order is filled.

23. Where an order is taken by an agent, subject to approval, and is not finally accepted until it reaches the plaintiff's place of business, then it would be a sale at the house.

24. If the order is taken, but not subject to approval, and taken by the agent at a different place from the plaintiff's business house, then the sale so made would be illegal.”

The appellants complain of the giving of the twenty-fourth instruction. They insist that the sale, in the contemplation of the statute, is made at the place where the property is kept, and where it is set apart and designated for the purchaser. This point has been determined adversely to the position of appellants in Tigler & Co. v. Shipman, 33 Iowa, 194. In that case the plaintiffs, wholesale liquor dealers in Rock Island, Illinois, procured orders for the liquors in question through their agent...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT