Kelly v. Burke

• Decision Date: 13 February 1902
• Citation: 31 So. 512,132 Ala. 235
• Parties: KELLY v. BURKE.
• Court: Alabama Supreme Court

31 So. 512

132 Ala. 235

KELLY v. BURKE.

Supreme Court of Alabama

February 13, 1902

Appeal from circuit court, Cullman county; O. Kyle, Judge.

Action by J. W. Kelly against Robert I. Burke, as guardian of J. A McMinn, a lunatic. From a judgment in favor of the defendant the plaintiff appeals. Affirmed.

McClellan C.J., and Dowdell, J., dissenting.

Brown &amp Curtis and R. L. Hipp, for appellant.

J. B. Brown and Geo. H. Parker, for appellee.

TYSON J.

The complaint originally contained one count for goods, wares, and merchandise sold by plaintiff to defendant. The action was begun against J. A. McMinn, but after it was instituted the defendant, upon inquisition, was adjudged insane, and Burke appointed his guardian. Burke, as guardian, appeared and defended, and there was a judgment in his favor, from which the plaintiff prosecutes this appeal.

Plaintiff amended his complaint by adding counts 2, 3, 4, 5, and 6. A demurrer was sustained to counts 2, 3, and 4. Neither of these counts stated a cause of action. They aver no promise to plaintiff by defendant to pay for the value of the goods alleged to have been delivered or received by defendant; nor are sufficient facts alleged out of which an implied promise arose. Chickering v. Bromberg, 52 Ala. 528. There was, therefore, no error in sustaining the demurrer to each of them.

It appears from the bill of exceptions only that plea 4 was offered to be amended, but that the court refused to allow the amendment to be filed. The amendment offered did not cure the defect in the count. While this ruling of the court is assigned as error, it is not insisted upon in argument.

With these counts properly eliminated, the cause was tried upon counts 1, 5, and 6. The first two were for goods sold, and the last for money had and received. A number of defenses were interposed. Among these defenses was one that the money sought to be recovered was the price of spirituous, vinous, and malt liquors sold in violation of law. Section 3524 of the Code makes all sales of spirituous, vinous, or malt liquors to a person of unsound mind, without the consent of the parent or guardian of such person, void. Section 5079 of the Criminal Code makes it an offense for any person to sell such liquors to a person known or reputed to be of unsound mind, unless it be upon the prescription of a physician, or with the consent of the parent, guardian, husband, or wife of such person. If McMinn was insane at the time of the alleged sale of the whisky to him, and there was no consent given by the persons authorized to consent, and no prescription of a physician, the sale was void, not only on account of being positively declared so by section 3524, but on account of being opposed to public policy. Such contracts cannot be ratified or confirmed by subsequent acts or agreements of the parties. The sale being void, an action will not lie to recover the price. Moog v. Hannon's Adm'r, 93 Ala. 503, 9 So. 596. Nor is it of consequence that the ward's estate got the benefit of the transaction by a resale of the whisky and the appropriation of its proceeds. Bluthenthal v. Town of Headland (Ala.) 31 So. 87. So, too, it is of no consequence that the ward did not offer to return the whisky during his lucid interval, if he had one. This he was not bound to do, since the sale was void, and incapable of ratification. Nor was it of any moment that the whisky was sold by plaintiff to be resold in the ordinary course of business, and not to be drunk by McMinn. No such exception is found in the statutes, and we have no authority to ingraft it. And such exception cannot be introduced by way of construction, since the language employed in these statutes is plain and unambiguous. Where this is the case, neither the history of these statutes nor the mischief intended to be remedied can be looked to for the purpose of qualifying or otherwise defeating their plain mandate. In State v. McGough, 118 Ala. 166, 24 So. 397, after recognizing broadly the rule of construction so as to give force to the intention of the legislature by reference to the history, the causes leading to the adoption of the statutes, and the evils intended to be remedied by them, it was said: "But there are other rules of interpretation that may override all others; as when a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Possible or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere." See, also, Ex parte Mayor, etc., of Town of Florence, 78 Ala. 419. We have but to apply these principles to the demurrers interposed to the plea invoking this defense and to the replications thereto to which demurrers were sustained to see the correctness of the rulings of the court in overruling the former and sustaining the latter.

The only replication left to the plea setting up the defense...