P. J. Bowlin Liquor Company, a Corp. v. Beaudoin

• Decision Date: 23 June 1906
• Citation: 108 N.W. 545,15 N.D. 557
• Court: North Dakota Supreme Court

108 N.W. 545

15 N.D. 557

THE P. J. BOWLIN LIQUOR COMPANY, A CORPORATION, v. OTTO BEAUDOIN AND AUGUST BEAUDOIN, CO-PARTNERS AS BEAUDOIN BROTHERS

Supreme Court of North Dakota

June 23, 1906

Appeal from District Court, Morton county; Winchester, J.

Action by the P. J. Bowlin Liquor Company against Otto Beaudoin and August Beaudoin, doing business as Beaudoin Bros. Judgment for defendants, and plaintiff appeals.

Reversed.

Judgment reversed, and new trial ordered.

S. L Nuchols, for appellant.

Sales of intoxicating liquor are unlawful only when sold as a beverage.Rev. Codes 1899, section 7593.There is no presumption that the possession of intoxicating liquors is unlawful.State v. McMaster,13 N.D. 58, 99 N.W. 58.

Delivery of goods to a carrier for the purchaser is a delivery to the latter and title immediately vests in him.21 Am. & Eng. Enc (1st Ed.) 497-499.The sale takes place at the ploint where shipped.21 Am. & Eng. Enc. (1st Ed.) 511;Tegler v Shipman,11 Am. Rep. 118;McIntyre v. Parks,3 Met. 207;Whitson v. Stoddard, 8 Martin 95.Inadequate damages are grounds for new trial.Wolford v. Gold Mining Co.63 Cal. 433.

J. E. Campbell, for respondent.

Where agent knows the purchaser's intention to illegally sell the goods bought the knowledge binds his principal, and the latter cannot recover the price of the liquors.Fisher v. Bennet,56 Conn. 40;Louisville Second National Bank v. Curren,36 Ia. 538;Samuel Bowman Distilling Co. v. Nutt,34 Kan. 729;17 Am. & Eng. Enc.Law (2d Ed.) 314.

OPINION

ENGERUD, J.

Plaintiff is a Minnesota corporation, engaged in the sale of liquor at wholesale.Its place of business is at St. Paul, Minn.The defendants were partners engaged in business at Mandan, N.D.The nature of their business is not disclosed.The plaintiff sold and delivered to the defendants, in October and December, 1904, three consignments of whisky.The aggregate purchase price of the three consignments was $ 307.75, no part of which has been paid.The plaintiff sues to recover said sum, alleging that the liquor was sold and delivered at St. Paul, Minn.The defendants claimed that the sales and deliveries all took place in Mandan, and seek to escape liability on the ground that the transactions were unlawful.The trial court denied plaintiff's motion for a directed verdict, and instructed the jury that the only question of fact for them to decide was whether the sales took place in North Dakota or Minnesota, and, if they found the sales were made in North Dakota, the plaintiffs could not recover.The jury returned a verdict in plaintiff's favor for $ 99.50, the price of the first consignment.Plaintiff's motion for a new trial was denied, and judgment entered on the verdict.The plaintiff appeals, assigning as error, among other things, the denial of its motion for a directed verdict.

The first consignment consisted of a half-barrel of whisky shipped from St. Paul to Mandan, at defendants' expense, on or about October 5, 1904, in response to a letter from defendants to plaintiff, reading as follows: "Ship us at once 1/2 barrel of Humboldt."The other two consignments were shipped in response to verbal orders given in Mandan to plaintiff's traveling agent, or solicitor, and by the latter transmitted by mail to plaintiff.This solicitor had no authority to contract or make sales in behalf of his principal.He was employed merely to solicit and receive orders and transmit them to the plaintiff, subject to the latter's approval.On receipt of the orders in question by the company in St. Paul, the orders were approved and the liquor was delivered to the railroad company at St. Paul for transportation to the defendants, at the latter's expense.The defendants admit receiving the liquor and paying the freight on each consignment.There is no evidence whatsoever that the defendants were engaged in the unlawful sale of liquor, or that there was any intent on their part, or on the part of plaintiff, to evade the prohibition laws of North Dakota.There were no special directions given by defendants as to manner of shipment, and the liquor was sent in the customary way.The liquors ordered were in St. Paul, and were delivered to the carrier there.The only evidence on the part of the defendants with respect to the place of sale was the following testimony of one of the...