Maier v. State

• Court: Texas Court of Appeals
• Writing for the Court: Garrett
• Citation: Maier v. State, 21 S.W. 974, 2 Tex. Civ. App. 296 (Tex. App. 1893)
• Decision Date: 16 February 1893
• Parties: MAIER et al. v. STATE.

21 S.W. 974

MAIER et al. v. STATE.

Court of Civil Appeals of Texas.

February 16, 1893.

Appeal from district court, Anderson county; F. A. Williams, Judge.

Action by the state of Texas against Sol. Maier and others on the bond of said Maier, as a liquor dealer, for a breach of the condition of the bond. From a judgment for plaintiff, defendants appeal. Affirmed.

Burnett, Gardner & Webb, for appellants. A. G. Greenwood, for the State.

GARRETT, C. J.

This is a suit in the name of the state of Texas, on a liquor dealer's bond, to recover the penalty for a breach of the condition of the bond, — that the liquor dealer would not permit to be sold, in his place of business, malt liquor, to any person under the age of 21 years. The petition set out the bond, which is dated March 6, 1891, and is conditioned in the terms of the statute.¹ It was alleged that the defendant executed the bond for the purpose of procuring a retail license to sell spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, in quantities less than a quart, in the city of Palestine and county of Anderson, and that the license was issued on the 7th day of March, A. D. 1891. The breach of the bond was alleged as follows: "Plaintiff would further show that notwithstanding the bond and obligation of the said Sol. Maier and his sureties, as aforesaid, that heretofore, to wit, on or about the ___ day of ___, 1891, in violation of the bond and obligation of said Sol. Maier to the state of Texas, one Albert Maier, who was then and there the agent and employe of Sol. Maier, was then and there acting as such, did sell or give, or permit to be given, to Rob. Rodgers, spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, the said Rob. Rodgers then and there being a minor under the age of twenty-one years, in violation of the said bond to the state as aforesaid, whereby the said defendants have become liable to the state of Texas, for the use and benefit of the county of Anderson, in the penal sum of five hundred dollars, for which sum the state heresues." Trial was had without a jury, and judgment was rendered in favor of the state of Texas, for the use and benefit of the county of Anderson, against the defendants, Sol. Maier, as principal, and A. A. Stevens and J. F. Pells, as sureties, for the sum of $500, the penalty sued for. Defendants filed motions in arrest of judgment, and for a new trial, which were overruled by the court.

The facts are, as found by the court below, as follows: "That, after giving the bond set out in the petition, defendant Maier kept a saloon in Palestine, Anderson county, Tex., for the sale of alcoholic, vinous, and malt liquors, capable of producing intoxication; that on the day, September ___, 1891, his clerk and bartender, Albert Maier, sold or gave to Rob. Rodgers, a minor under the age of 21 years, a glass of beer, the kind of which is not shown, except as it may be inferred. The facts are that the minor entered the saloon in company with several persons, one of whom, an adult, ordered beer for them all, whereupon the bar tender placed upon the bar a glass of beer for each of the party. While the glass put out for the minor was still on the bar, his father, who had seen him go into the saloon, entered, and called to the clerk not to let his son drink the beer, stating that he was a minor. The clerk did not hear at first what was said, and advanced to where the father was standing, leaving the minor at the other end of the bar, and asked the father what he said, upon which the latter repeated his statement. To this the clerk replied that he could not help it; that the other gentlemen ordered the beer. The evidence conflicts as to whether the clerk could have then prevented the minor from drinking the beer, and I hold it to be immaterial whether he could or not. The minor, not seeing his father, drank the beer. The bartender refused to take pay for the beer which the minor drank. Defendant Maier was not present, and did not know of the transaction. He had instructed the clerk not to sell liquor to minors, nor allow them about the saloon. From the conduct of the parties at the time, and other facts stated, I conclude that the beer was malt liquor, capable of producing intoxication."

Conclusions of Law.

1. The purpose, in a motion in arrest of judgment, is to present to a court after trial such matters as before trial might have been presented by demurrer. Machon v. Randle, 66 Tex. 282, 17 S. W. Rep. 477. The allegation in the petition that the agent and employe of Sol. Maier, acting as such, sold the liquor, is sufficient to show a breach of the bond in that respect. The bond was set out in full in the petition, and it was alleged that it was executed for the purpose of procuring a license to sell liquors in the city of Palestine, in the county of Anderson. It was also alleged that the license was issued, and that, in violation of the bond and obligation, the sale was made as alleged. It sufficiently appears from the allegations stated above that the defendant and Sol. Maier had executed a bond, and had obtained license to do business as a liquor dealer in the city of Palestine, in the county of Anderson, and in the course of such business had sold the liquor in violation of the conditions of the bond. The allegation as to date necessarily showed that it was after the execution of the bond, and was at least good on general demurrer. There was no error in overruling the motion in arrest of judgment.

2. It is contended by counsel for appellants that, because the defendant Sol. Maier was not present and did not know of the transaction, and had instructed his clerk not to sell liquors to minors, a breach was not shown of the condition of the bond, that he would not permit liquors to be sold to a minor. When the defendant undertook that he would not permit liquors to be sold to minors in his house or place of business he obligated himself that liquors should not be so...