Old Kentucky Distrib. Corp. v. Morin

• Court: Rhode Island Supreme Court
• Writing for the Court: SWEENEY, J.
• Citation: Old Kentucky Distrib. Corp. v. Morin, 50 R.I. 163, 146 A. 403 (R.I. 1929)
• Decision Date: 05 June 1929
• Docket Number: No. 6626.,6626.
• Parties: OLD KENTUCKY DISTRIBUTING CORPORATION v. MORIN.

146 A. 403

OLD KENTUCKY DISTRIBUTING CORPORATION

v. MORIN.

No. 6626.

Supreme Court of Rhode Island.

June 5, 1929

Exceptions from Superior Court, Providence and Bristol Counties; J. Jerome Hahn, Judge.

Action of the case in assumpsit by the Old Kentucky Distributing Corporation against William G. Morin. Verdict for plaintiff was directed, and defendant's motion for directed verdict denied, and defendant brings exceptions. Exceptions sustained in part and overruled in part, and case remitted for new trial.

Edward C. Stiness and Francis J. O'Brien, both of Providenee, for plaintiff.

Rosenfeld & Hagan and C. Bird Keach, all of Providence, for defendant.

SWEENEY, J. This action of the case in assumpsit was tried in the superior court. At the close of the testimony, each party moved for a directed verdict. The trial justice directed the jury to return a verdict for plaintiff, and denied defendant's motion. The case is before this court on defendant's exceptions to these rulings.

This case arises from dealings between the parties relating to the sale and purchase of warehouse receipts covering whisky in a United States government bonded warehouse. The sale or purchase of such receipts is not prohibited by the National Prohibition Act, but the liquor covered by such receipts may be withdrawn from the warehouse only on permit issued by certain government officials.

February 8, 1923, plaintiff's president and vice president called upon defendant. Defendant was conducting a retail drug store. He was familiar with the method of obtaining whisky by purchasing warehouse receipts and withdrawing the whisky from the warehouse on government permit. He had such a permit which expired December 31, 1922. As a result of the call of plaintiff's officers, defendant signed a printed order, wherein he agreed to purchase from plaintiff warehouse receipts for 105 cases of whisky in bond for $2,200, and acknowledged the receipt of six contracts for the same. In payment for the warehouse receipts, defendant signed and delivered to plaintiff's officers two checks for $500 and 17 serial promissory notes for the balance of $1,700. Defendant stopped payment on the checks the next day, and refused to pay the notes. Plaintiff commenced this action after five of the notes had become due. The declaration contains counts only on the checks and the notes.

Plaintiff proved a prima facie case by producing in evidence the checks and the notes. Kirk v. Ball, 45 R. I. 93, 120 A. 165. Plaintiff also produced the order signed by defendant. Defendant produced in evidence the six contracts referred to in the order. He testified that he signed the order contracts, checks, and notes because plaintiff's officers told him they would fix it so he could withdraw the whisky from the warehouse during the year 1923 on his 1922 permit; that, upon learning from the local government officers that this could not be done, he refused to pay the checks and the notes. Plaintiff's officers denied that they told defendant they would fix it so he could withdraw the whisky on his 1922 permit.

Plaintiff's motion for a directed verdict was on the ground that, as defendant knew the law required him to obtain a permit in 1923 if he wished to withdraw whisky from the warehouse during that year, he was not deceived by the alleged statement of plaintiff's agents to the contrary, and therefore was not justified in refusing to pay his checks and notes. The trial justice agreed with this contention, and directed a verdict for the full amount of the checks and notes, with interest, viz. $2,948. In considering defendant's exception to this ruling, it is necessary to determine whether the contract was executory or executed, and, if the former, the measure of damages for its breach.

This action, being brought by the original payee of the checks and notes, was open to the defense of failure of consideration and misrepresentation. Section 3039, G. L. 1923. It is a general rule that, when notes are executed with other instruments at the same time, for the same purpose and in the course of the same transaction, they are to be considered as one instrument, and are to be read and construed together. 3 R...