Jacobs v. Danciger

• Decision Date: 28 July 1931
• Parties: Floyd E. Jacobs, Administrator of Estate of A. Hattrem et al., v. Abe Danciger et al., Appellants
• Court: Missouri Supreme Court

41 S.W.2d 389

328 Mo. 458

Floyd E. Jacobs, Administrator of Estate of A. Hattrem et al., v. Abe Danciger et al., Appellants

Supreme Court of Missouri

July 28, 1931

Appeal from Jackson Circuit Court; Hon. Ralph S. Latshaw Judge.

Reversed and remanded.

Henry L. Jost and Ringolsky, Friedman, Boatright & Jacobs for appellants.

(1) Mere knowledge on the part of plaintiffs that defendants were purchasing the hops for the express purpose and with the specific intent to place same in packages, together with malt, syphon, clarifier and caps, which packages were designed, sold and intended to be used for making intoxicating home brew beer, made the sale and the contract therefor illegal and to instruct the jury otherwise was error. This is true from three separate and distinct view-points: (a) From early times it has been held that mere knowledge by seller that the purchaser intended to use the article purchased for an illegal purpose and for the commission of a crime, made the contract illegal in cases where the contemplated act was a felony or malum in se, but the principle was not applied where the act was a misdemeanor or malum prohibitum. The distinction being unfounded in reason and altogether illogical, has accordingly, been abandoned and it is now held that, if the purchaser is buying for the purpose and with the intent of committing a crime with the purchased article, and such purpose and intent is known to the seller, such fact makes the contract an illegal one, regardless of whether the contemplated act is classified as a felony or misdemeanor or malum in se or malum prohibitum. Mitchell v. Bacon, 49 Mo. 474; Howell v. Stewart, 54 Mo. 400; Sprague v. Rooney, 82 Mo. 493; Sprague v. Rooney, 104 Mo. 349; St. Louis Fair Assn. v. Carmody, 151 Mo. 566; State ex rel. v. Fire Ins. Co., 306 Mo. 537; State ex rel. v. Daues, 315 Mo. 22; Haggerty v. Ice Mfg. Co., 143 Mo. 238; 2 Page on Contracts (2 Ed.), sec. 1108. (b) The National Prohibition Act forbids and makes it a crime for anyone to sell any substance or article with intent same shall be used in making an intoxicating liquor as therein defined. Consequently, if plaintiffs sold the hops and made the contract therefor with intent the hops should be used for making intoxicating liquor, then plaintiffs committed a crime and the sale and contract of sale were the crime. Knowledge by the seller that the purchaser is buying for the purpose of having the hops used for making intoxicating liquor necessarily imputes to the seller an intent on his part that they shall be so used. Such knowledge on the part of seller would make the seller guilty of the substantive offense. Therefore it was error to instruct that mere knowledge would not be sufficient to make the contract illegal. Sec. 18, Title II, National Prohibition Act, U. S. C., title 27, sec. 30; Weinstein v. United States, 293 F. 388; Pattis v. United States, 17 F.2d 562; Anstess v. United States, 22 F.2d 594; Massei v. United States, 295 F. 683; Reynolds v. United States, 282 F. 256. (c) Under the Criminal Code of the United States, if two or more persons conspire together to commit an offense against the United States by violating any statute of the United States and either one does any act to effect the object of such conspiracy, all such persons are punishable by a fine of not less than $ 10,000 or imprisonment for not more than two years. The Criminal Code also provides that whoever aids, counsels, induces or procures the commission of an offense defined in any law of the United States is a principal. Consequently, if plaintiffs, merely knowing that defendants were purchasing said hops to place same in packages with other ingredients and sell same for the purpose and with the intention that they should be used in the manufacture of intoxicating beer and with such knowledge nevertheless sold and agreed to sell the hops to defendants, they thereby not only committed the substantive offense but also were guilty of a conspiracy with defendants to violate the law and commit an offense against the United States. In such event even if the ancient rule as to the cases in which mere knowledge makes the contract an illegal one be followed, still mere knowledge in this case, under these circumstances, would make the contract illegal because the conspiracy was a felony. Sec. 37, Criminal Code United States, U. S. C., title 18, sec. 88; Sec. 332, Criminal Code United States, U. S. C., title 18, sec. 550; Jones v. United States, 11 F.2d 98; Pattis v. United States, 17 F.2d 562; Costal v. United States, 13 F.2d 843. (2) A jury cannot disregard the testimony of any witness merely because such witness has not correctly stated the facts and the jury must be required to find that the witness has willfully or intentionally sworn falsely before such witness's testimony can be disregarded. To instruct the jury otherwise is erroneous. Poague v. Mallory, 208 Mo.App. 395; Jackson v. Powell, 110 Mo.App. 249; State v. Elkins, 63 Mo. 159. (3) An instruction on credibility of witnesses should not have been given under the facts in this case. Bank v. Murdock, 62 Mo. 70; Keeline v. Sealy, 257 Mo. 498. (4) It is not a sufficient compliance with the Statute of Frauds to designate the quantity of hops sold and purchased as 150 bales. Whaley v. Hinchman, 22 Mo.App. 483; Weil v. Willard, 55 Mo.App. 376; Fox v. Courtney, 111 Mo. 147; Kelly v. Thuey, 143 Mo. 422; Boyd v. Paul, 125 Mo. 9; Ringer v. Holtzclaw, 112 Mo. 519; Johnson v. Fecht, 185 Mo. 335; Cement & Materials Co. v. Kries, 261 Mo. 160; Shy v. Lewis, 12 S.W.2d 719; 27 C. J. 270, sec. 321; Reigart v. Coal & Coke Co., 217 Mo. 142; Tracy v. Aldrich, 236 S.W. 347; Allen West Commission Co. v. Richter, 286 Mo. 691; Crane v. Berman, 297 S.W. 423; Gray v. Cooper, 274 S.W. 941. (5) Parol evidence is admissible to show that a material oral stipulation and agreement between the parties was not included in the writing in order to show that the same does not meet the requirements of the Statute of Frauds. 27 C. J. 385, sec. 478; Smith v. Shell, 82 Mo. 215; Soper v. Investment Co., 253 S.W. 796. (6) Where plaintiff voluntarily concedes that the contract as reduced to writing does not in and of itself meet the requirements of the Statute of Frauds and permits testimony to be introduced tending to show that an agreement was had between the parties as to the amount of merchandise sold and purchased, then in such case the jury should be instructed that if it finds such agreement existed, its verdict must be for the defendant. Smith v. Shell, 82 Mo. 215; Soper v. Investment Co., 253 S.W. 796; Walker v. Auto Co., 191 S.W. 1061. (7) Where a contract expressly states that the writing constitutes the entire agreement, no oral testimony either of custom or oral agreement can be introduced. 22 C. J. 1253, sec. 1664. (8) Where the evidence offered to show a custom in fact shows that the practice is that bales of hops vary greatly in weight depending upon the precise size of the bale, the moisture content of the hops and the pressure used in baling, and that bales of hops rarely, if ever, weigh exactly 200 pounds, but vary all the way from 180 to 280 pounds, such evidence as a matter of law, when offered by the plaintiff, conclusively disproves the existence of any such custom. A practice in order to become a custom must be definite, fixed, certain and uniform, and mere loose and variable practice does not constitute a custom. 17 C. J. 453, sec. 10; Ehrlich v. Ins. Co., 103 Mo. 238; Leonard v. Dougherty, 296 S.W. 263; Staroske v. Publ. Co., 235 Mo. 75.

J. M. Johnson and Charles H. Thompson for respondents.

(1) The written contract did not limit or define the use which the vendees would or might make of the commodity sold. The commodity was not contraband, but was lawful and, at the time the contract was entered into, neither party knew or believed that its use in the manufacture of "home brew packages," if such use were intended, would be unlawful. If the vendees feared it might be declared unlawful they should have protected themselves by an appropriate stipulation in the contract. There is no ground on which to predicate the contention of an intent on the part of the vendors to violate a positive law. Michaels v Bacon, 49 Mo. 474; Howell v. Stewart, 54 Mo. 400; Kerwin & Co. v. Doran, 29 Mo.App. 397; Holman v. Johnson, 1 Cowp. 341; Curran v. Downs, 3 Mo.App. 468; St. Louis Fair Assn. v. Carmody, 151 Mo. 566; Tucker v. Duckworth, 107 Mo.App. 236; Sawyer v. Sanderson, 113 Mo.App. 233; Insurance Co. v. Distilling Co., 182 F. 593; Waugh v. Beck, 114 Pa. 422; Ashford v. Mace, 103 Ark. 114; 2 Page on Contracts (2 Ed.) sec. 1109; 23 R. C. L. 1317, sec. 134; 13 C. J. 517, sec. 476; Tracy v. Talmage, 14 N.Y. 162; Stroh Products Co. v. Davis, 8 F.2d 773. (2) If there had been no such intent at the time of entering into the contract, there being no provisions therein specifying the use to be made of the commodity, the vendees were at liberty to devote their purchase to a lawful use, and the contract being executory at the times of its origin and breach, defendants cannot escape liability on the excuse that what they thought was an innocent use at the time they signed the contract turned out to be an unlawful use. Authorities supra. (3) Instruction 2, given at the request of plaintiffs, properly declared the law. Conceding for argument that Hattrem knew the hops were intended by defendants for use in the manufacture and sale of "home brew" packages his knowledge alone would not constitute participation by plaintiffs in a plan of defendants to commit an offense against a positive law. Authorities supra. (4) To invalidate the contract it was necessary that Hattrem have knowledge not only of the fact that defendants intended to use the hops in the...