McConnon & Co. v. Meadows

• Decision Date: 02 March 1925
• Docket Number: 24655
• Citation: 103 So. 7,138 Miss. 342
• Parties: MCCONNON & CO. v. MEADOWS. [*]
• Court: Mississippi Supreme Court

103 So. 7

138 Miss. 342

MCCONNON & CO. v. MEADOWS. ^[*]

No. 24655

Supreme Court of Mississippi

March 2, 1925

Division A

1 GUARANTY. Indictment charging debtor with sale of liquor held inadmissible in creditor's action against guarantor.

In action on guaranty, defended on ground that debt guaranteed was incurred in sale of intoxicating liquor within Code 1906 section 1743 (Hemingway's Code, section 2085), making debt so contracted nonenforceable, indictment returned against debtor for sale of intoxicating liquor held not admissible.

2. INTOXICATING LIQUORS. Manufacturer's sale of products containing alcohol for resale for medicinal and household purposes held not sale of "intoxicating liquor."

Manufacturer's sale, in good faith, of proprietary medicines, extracts, and toilet products containing alcohol, to be resold by buyer for medicinal and household purposes, held not a sale of "intoxicating liquor," in violation of Laws 1918 chapter 189, within Code 1906, section 1743 (Hemingway's Code, section 2085), making debt incurred in sale of "intoxicating liquor" nonenforceable, though buyer, without manufacturer's knowledge, sold such medicines, extracts, and toilet products for beverage purposes.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Simpson county, HON. W. L. CRANFORD, Judge.

Action by McConnon & Co. against J. W. Meadows. Judgment for defendant, and plaintiff appeals. Reversed and judgment rendered.

Cause reversed.

A. M. Edwards, for appellant.

The first assignment of errors is, that the court erred in granting peremptory instruction for the defendant in this case. The plaintiff contended that the flavoring extract and medicine containing alcohol sold by it to the said Drummonds could not be used for beverage purposes and that they were unfit for such purposes and the plaintiff produced strong evidence to that effect, and the defendant sought to controvert this evidence by testimony that certain flavoring extracts sold to the said Drummonds had been used for intoxicating purposes and had caused intoxication.

It will be noted that in the application of the Prohibition Acts, preparations containing alcohol may be properly divided into three classes, as follows: First, those preparations which by reputation and ordinary use as intoxicating liquors, such as brandy, whiskey, rum, beer, wine, etc. Second, those which by general reputation and use although containing alcohol are not intoxicating liquors in that they have been for years manufactured and dealt in for legitimate food and medicinal purposes such as patented, patent and proprietary medicines, and household culinary flavoring extracts. Third, those preparations which contain alcohol which are described and sold under names and directions indicating medicinal, scientific or industrial use and purposes but which are on the borderline between the two classes above mentioned, such as medicated wines, tonics, containing alcohol, seeds, herbs, barks, etc., and bitters containing intoxicating liquors and other ingredients.

We submit that plaintiff's preparations come within the second class above mentioned and they are generally by the courts held not to be intoxicating liquors but manufactured and sold for the purpose for which they are intended, it making no difference whether or not they contain more than the maximum amount of alcohol usually named in Prohibition Acts. Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284; United States v. Stubblefield, 40 F. 454.

The excessive and immoderate use of any preparation in which alcohol is used in sufficient quantities to preserve the other ingredients may intoxicate; but the mixture does not fall under the ban of the statute because spirituous liquor is present. Carl v. State, 87 Ala. 17, 6 So. 118; Bradley v. State, 121 Ga. 201, 48 S.E. 981; Roberts v. State, 4 Ga.App. 207, 60 S.E. 1082.

The supreme court of the state of Mississippi has laid down a rule with respect to what preparations are prohibited and what are not as intoxicating liquors. King v. State, 58 Miss. 737, 38 Am. Rep. 344; Bertrand v. State, 73 Miss. 51, 18 So. 545; Goode v. State, 87 Miss. 195, 40 So. 12; Russell v. Sloan, 33 Vt. 656; State v. Keser, 74 Vt. 50, 52 A. 116; State v. Krimski, 78 Vt. 162, 52 A. 37; Holcomb v. People, 49 Ill.App. 73; Commonwealth v. Sookey, 236 Mass. 448, 128 N.E. 788, 11 A. L. R. 1230; Schemmer v. State (Neb.), 180 N.W. 581.

Because some pervert has the craving or desire to drink a flavoring extract for beverage purposes in spite of its unsuitability for that use it cannot be said that a flavoring extract is potable as a beverage, nor was it the intention of the legislature to deprive the housewife of the ordinary flavoring extracts because of the fact that persons of perverted tastes and desires sometimes resort to them for alcoholic stimulation.

A harmless preparation of general use for toilet or household purposes and sold by merchants does not become an intoxicating beverage because used occasionally as such. Commonwealth v. Lanides, 239 Mass. 103, 131 N.E. 302. In the following cases the evidence was held insufficient to prove that the goods in question were intoxicating liquors. Crafton v. State (Ark.), 240 S.W. 11; Norwood v. State, 80 Fla. 613, 86 So. 506; Parchman v. State, 127 Miss. 8; State v. Morrison (Mo.), 240 S.W. 822; State v. Weagley (Mo.), 240 S.W. 822; Blue v. State, 205 Okla.App. 74.

We submit that the sale of the goods in question which are the basis of the suit in question namely, extracts, flavorings, etc., and other similar medicinal preparations when sold strictly for medicine and household uses and not as a beverage as was shown in this case at bar are not condemned by our prohibition laws. The test, however, is whether or not such preparation was sold in good faith as a medicine or flavoring extracts to be used for legitimate purposes. The question of good faith here is one for the determination of the jury trying the case and in passing upon this question they may take into consideration the facts and circumstances surrounding the sale, the party to whom the sale was made, and the amount sold, etc. The foregoing rules are clearly stated in the following adjudicated cases: Bertrand v. State, supra; Goode v. State, supra; Payne v. State, 125 Miss. 896, 88 So. 483.

J. P. Edwards, for appellee.

If the liquid or extract was intoxicating as testified to by defendant's witnesses then it is condemned by section 2102 and section 2085. This court held in Elkin-Henson Grain Co. v. White, 98 So. 531, that a note even in the hands of an innocent purchaser was void where the consideration of the note was for intoxicating liquor.

It is contended by plaintiff, appellant here, that the contract sued on is valid for the reason that such sales are not prohibited by the Federal Statutes, but that under the Volstead Act such sales are authorized. In answer to this we say that even if this were true, as to such sales being legal under the Federal Statutes, this would not legalize such sales under the laws of Mississippi.

We submit that as the account guaranteed by defendant, Meadows, was an entire contract and guaranteed payment of an account partly illegal it is void. Cotton v. McKenzie, 57 Miss. 418.

OPINION

MCGOWEN, J.

McConnon & Co., appellant here, a corporation chartered under the laws of Minnesota, domiciled at Winona, Minn., filed its declaration in the circuit court upon a contract of guaranty executed by J. W. Meadows, whereby the said Meadows guaranteed the payment of any indebtedness incurred by Carl Drummonds amounting to four hundred thirteen dollars and sixty-two cents. To this declaration the defendant entered his appearance and filed a plea of the general issue and notice under said plea of special matter, of which we quote only the following:

"Plaintiff will also take notice that defendant will offer evidence to show on the trial of this case that most of the goods sold by plaintiff to the defendant, and for which the so-called guaranty was signed by defendant, were intoxicating beverages, and therefore offered for sale and sold in violation of the laws of the state of Mississippi, and therefore the contract, so called a guaranty, made by this defendant for payment of same was void and no recovery can be had on same; that there were goods far in excess of the amount sued for under the contract with the said Carl Drummonds and alleged to have been guaranteed as to payment for same by defendant, that were intoxicating and sold as a beverage to the said Drummonds, and that more has been paid on same than due for goods that were nonintoxicating, and said contract is therefore null and void.

"Also will offer evidence to prove that said guaranty...