Orke v. McManus

• Decision Date: 14 May 1909
• Parties: ORKE v. MCMANUS (DUBUQUE STAR BREWING CO., INTERVENER).
• Court: Iowa Supreme Court

142 Iowa 654

121 N.W. 177

ORKE

v.MCMANUS (DUBUQUE STAR BREWING CO., INTERVENER).

Supreme Court of Iowa.

May 14, 1909.

Appeal from District Court, Winneshiek County; L. E. Fellows, Judge.

The plaintiff, Orke, brought this action against the defendant, McManus, for $416, an alleged balance due for fixtures, furniture, and stock in a saloon sold by the plaintiff to the defendant. The Dubuque Star Brewing Company intervened in the action and alleged that it held a prior bill of sale upon the fixtures, furniture, and stock in question, executed and delivered to it by the plaintiff Orke, and that it held the same as security for an indebtedness owing to it by the plaintiff. It also pleaded that an arrangement had been entered into between the parties whereby the defendant McManus should retain possession of the property and should pay the balance of the purchase price due from him to the party legally entitled to the property. Both plaintiff and defendant answered the petition of intervention, alleging the intervener's bill of sale was void, in that the consideration therefor consisted wholly of an indebtedness incurred by the plaintiff for intoxicating liquors unlawfully sold to him by the intervener. There was trial to the court and judgment for the intervener. Plaintiff appeals. Reversed.

For former opinion, see 115 N. W. 580.

E. R. Acres, for appellant.

M. A. Harmon, for appellee McManus.

E. W. Cutting, for appellee Dubuque Star Brewing Co.

EVANS, C. J.

Orke operated a saloon at Ossian, Iowa, and became largely indebted to the intervener, Dubuque Star Brewing Company, for intoxicating liquors purchased. To secure this indebtedness he executed to the intervener a bill of sale of the property in question. Some time later he sold out his business to McManus, and executed to him also a bill of sale covering the same property. Upon discovering the claim of the intervener, McManus declined to pay the balance of the purchase price, and this suit was brought therefor. The pleadings of the parties were so framed that the only issue tried was whether the sales of intoxicating liquors by the intervener to Orke prior to June 6, 1905, was in violation of law. If so, Orke is entitled to judgment against McManus, as prayed; if not, the intervener is entitled to such judgment.

1. The intervener was a manufacturer of beer, located at Dubuque, Iowa, and claimed to be operating in accordance with the provisions of sections 2456 and 2461 of the Code. Section 2460 provides: “Any person, partnership or corporation operating any brewery * * * permitting any drinking of such product or selling the same at retail upon the premises of any such manufacturing establishment shall forfeit the exemption hereby contemplated to be granted.” It is the contention of appellant that the intervener did permit drinking of beer upon its premises, and that it did sell the same at retail upon such premises. It appears from the undisputed testimony that the intervener was the owner of a certain structure or structures covering eight lots of ground in a certain block numbered from 3 to 10, inclusive. Lot No. 3 was in the northeast corner of the block, and the other lots lay to the south in consecutive order, fronting east. Exhibit 24 is a photograph or engraving of such structure or structures as they appear fronting east:

IMAGE

The claim of the intervener was that the brewery proper covered lots 5, 6, 7, 8, 9, and 10. The structure covering lots 3 and 4 consists of two stories. The second story thereof is used as a residence by the president of the brewery company. That part of the lower story which covers lot 4 is occupied by the president as an...