Jacobs v. Danciger

• Decision Date: 30 June 1936
• Citation: Jacobs v. Danciger, 95 S.W.2d 1193, 339 Mo. 91 (Mo. 1936)
• Parties: Floyd E. Jacobs, Administrator of the Estate of A. Hattrem, T. A. Livesley and John J. Roberts, Copartners Doing Business as A. Hattrem & Company, Appellants, v. A. Danciger, Jack Danciger, Dan Danciger, M. O. Danciger and Joe Danciger, Copartners Doing Business as Danciger Brothers
• Court: Missouri Supreme Court

95 S.W.2d 1193

339 Mo. 91

Floyd E. Jacobs, Administrator of the Estate of A. Hattrem, T. A. Livesley and John J. Roberts, Copartners Doing Business as A. Hattrem & Company, Appellants, v. A. Danciger, Jack Danciger, Dan Danciger, M. O. Danciger and Joe Danciger, Copartners Doing Business as Danciger Brothers

Supreme Court of Missouri

June 30, 1936

Appeal from Jackson Circuit Court; Hon. Daniel E. Bird Judge.

Reversed and remanded.

Charles H. Thompson and Johnson, Garnett & Quinn for appellants.

(1) The business could not have been illegal without criminal intent and only the jury was entitled to find, as an independent fact, that criminal intent was shown. Nosowitz v. United States, 282 F. 578; United States v. Nomel Products Co., 47 F.2d 575; Israel v. United States, 63 F.2d 345; United States v. 301 Cans Acme Malt Extract, 28 F.2d 213. (a) The pleadings, by virtue of the answer and reply, join issue as to illegality of the business, and the court could not properly determine that issue as a matter of law by peremptory instruction, even if it should be conceded that defendants' evidence in support thereof was uncontradicted. Gannon v. Laclede Gas Light Co., 145 Mo. 502; Lafferty v. Casualty Co., 287 Mo. 555; Ford v. Transfer Co., 318 Mo. 741. (2) The second paragraph of defendants' Instruction 9 is in irreconcilable conflict with the law as declared in the former opinion of this court. It entirely ignores the rule that, in order to sustain the defense of illegality, it must be shown that the seller, with knowledge of the buyer's unlawful purpose, committed some affirmative act in aid or furtherance of that purpose or had some interest in the performance of the illegal act. It directs a verdict for defendants without requiring a finding of an intention on the part of both vendor and vendee to violate the law; and without requiring a finding of any act of participation other than the mere act of selling. Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389. (a) The words "advised encouraged, counselled or induced" do not suggest an act of participation within the meaning of the law which renders contracts for an illegal purpose unenforceable. Those words only point to the solicitation which resulted in the sale. Hill v. Spear, 50 N.H. 281; Hubbard v. Moore, 24 La. Ann. 591. (b) The phrase "with the design and intention that they should be used by Danciger Brothers in said business" is also erroneously employed. Wolf v. Mallinckrodt Chemical Works, 81 S.W.2d 333. (c) The clause "and agreed to sell and deliver to Danciger Brothers said hops to be used in said business" is erroneous. Tracy v. Talmage, 14 N.Y. 176; Gallick v. Castiglione, 38 P.2d 858; Curran v. Downs, 3 Mo.App. 468; Michael v. Bacon, 49 Mo. 476; Higgins v. Fitzgerald, 164 N.E. 813. (3) The contract in suit is not violative of Section 18, Title II, National Prohibition Act (U.S.C. A., title 27, section 30), and defendants' Instruction 9, by directing a verdict upon a finding that the contract violates the law is erroneous. Sec. 30, Title 27, U.S.C. A.; Howard v. Stewart, 54 Mo. 400; Higgins v. Fitzgerald, 164 N.E. 813.

Ringolsky, Boatright & Jacobs for respondents.

(1) Defendants' Instruction 9 was in accordance with the trial theory of both parties and assumed the same facts and declared the same law as plaintiffs' instructions 1 and 2. (a) The facts assumed in defendants' Instruction 9 were uncontradicted. (b) Plaintiffs by their cross-examination and requested instructions indicated to the court that there was no dispute as to the intent and purpose of defendants in advertising, manufacturing and selling home brew packages. (c) Even though under pleadings a question of fact is technically in issue if the party raising the issue manifests to the judge presiding at the trial that such fact is not really disputed, the same may be assumed as true in instructions. Davidson v. St. L. Transit Co., 211 Mo. 357, 109 S.W. 583; Walsh v. Hartman, 39 S.W.2d 398. (d) Where plaintiffs' requested and given instructions assume the same facts and declare the same law as defendants' instructions plaintiffs are not entitled to complain. Holmes v. Braidwood, 82 Mo. 617; Thorpe v. Ry. Co., 89 Mo. 650, 2 S.W. 3. (2) A sale of hops with an intention on the part of the seller that they shall be used in the unlawful maufacture of intoxicating liquor is illegal. Sec. 30, Title 27, U.S.C. A.; Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389. (a) The statute fixes the intention of the seller in making the sale as the sole test of legality. Jacobs v. Danciger, supra. (b) Defendants' Instruction 9 correctly declared the law and was in accordance with the former decision of this court in this case. Jacobs v. Danciger, supra.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Under date of April 23, 1920, A. Hattrem, representing plaintiffs, of Salem, Oregon, and A. Danciger, representing defendants, of Kansas City, Missouri, contracted in writing for the sale and purchase, respectively, of 150 bales of choice Yakima or Oregon brewing hops of the crop of 1920, at 85 cents a pound, delivered f. o. b. cars at Kansas City, Missouri, in shipments of fifty bales each in October, November and December, 1920. On September 24, 1920, prior to any shipment under said contract, defendants notified plaintiffs they would not receive said hops and would not comply with said contract.

The term "bale," as used in said contract, referred to 200 pounds of hops. There was testimony tending to establish the fact that the market price of hops at Kansas City, Missouri, had dropped to approximately 47 cents on September 24, 1920; and plaintiffs instituted this action to recover the difference between the contract price and the market price at the time of cancellation, alleged to be $ 12,000.

Defendants had been engaged in the wholesale liquor business and the operation of a brewery. With the advent of War Time Prohibition and the Eighteenth Amendment to the Federal Constitution, they discontinued said business; and, thereafter, in 1919 engaged in what is termed in the record the "home brew package business," which consisted of the manufacture and sale of packages containing hops, malt extract, clarifier, caps, cappers, rubber siphon and drugs for making home brew beer. The packages did not include yeast, without the addition of which the packages could be used for making beer containing not in excess of one-half of one per centum of alcohol by volume. The directions, however, contained instructions covering the addition of yeast. Defendants had been advised by the Prohibition Commissioner on March 27, 1920, that the sale of their products and formula was not in violation of law. On June 24, 1920, they were advised the ruling theretofore made was reversed, and that the conclusion had been reached that such business was in violation of the National Prohibition Act.

Plaintiffs' petition was upon the written contract between plaintiffs and defendants. Defendants' answer, admitting the contract and its cancellation, alleged that said contract and the acts, conduct and agreement of plaintiffs and defendants were illegal and in violation of Section 18, Title II of the National Prohibition Act (41 Stat. 313, 27 U.S.C. A., sec. 30), and Sections 37 (35 Stat. 1096, 18 U.S.C. A., sec. 88) and 332 (35 Stat. 1152, 18 U.S.C. A., sec. 550) of the Federal Criminal Code. The reply was a general denial.

The case is here upon second appeal (see Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389), and passes off on issues involving said Section 18.

I. One of the contentions of plaintiffs is to the effect Section 18, Title II, of the National Prohibition Act did not attempt to make it unlawful for one to sell a raw product to another who is engaged in the business of making second sales of that product to third parties, who in turn, use it in violation of said act; and the contract in suit was not violative of said section. Said Section 18, reads: "It shall be unlawful to advertise, manufacture, sell, or possess for sale any utensil, contrivance, machine, preparation, compound, tablet, substance, formula, direction or recipe advertised, designed, or intended for use in the unlawful manufacture of intoxicating liquor." The provisions of said statute differ materially from the provisions of the statutes under consideration in the cases cited by appellant in support of their contention. In Howell v. Stewart, 54 Mo. 400, 406, the statute under consideration did not prohibit the loan which the plaintiff sought to collect; and the sale and purchase of the warehouse receipts covering distilled spirits involved in Higgins v. Fitzgerald, 266 Mass. 176, 178, 164 N.E. 812, were expressly permitted by the National Prohibition Act [Title II, Sec. 3, 41 Stat. 308, 27 U.S.C. A., sec. 12]. On the other hand, not only are the provisions of said Section 18 to be liberally construed [Title II, Sec. 3, 41 Stat. 308, 27 U.S.C. A., sec. 12; Danovitz v. United States, 281 U.S. 389, 397, 74 L.Ed. 923, 926(2), 50 S.Ct. 344, 345], but said statute expressly made unlawful the sale of "'any . . . substance [hops] . . . intended [by the seller] for use in the unlawful manufacture of intoxicating liquor.'" [Jacobs v. Danciger, 328 Mo. 458, 468, 41 S.W.2d 389, 391(5). See, also, Three Star Food Products Corp. v. Ofsa, 94 W.Va. 636, 643, 119 S.E. 859, 862(2).] Under this statute it was not necessary, as it was necessary under the statutes in the cases relied on by plaintiffs, that the seller become a particeps criminis to the unlawful act of the buyer that the sale be unlawful.

II. Plaintiffs question the correctness of defendants' instruction No. 9, reading:

"The court instructs the jury that under the law and evidence the business Danciger Bro...