P. Schoenhofen Brewing Co. v. Whipple

• Decision Date: 19 March 1902
• Citation: 89 N.W. 751,2 Neb. [Unof.] 704
• Parties: P. SCHOENHOFEN BREWING CO. v. WHIPPLE ET AL.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 704

89 N.W. 751

P. SCHOENHOFEN BREWING CO.

v.WHIPPLE ET AL.

Supreme Court of Nebraska.

March 19, 1902.

Commissioners' opinion. Department No. 2. Error to district court, Douglas county; Slabaugh, Judge.

“Not to be officially reported.”

Action by the P. Schoenhofen Brewing Company against John C. Whipple and others. Judgment for defendants, and plaintiff brings error. Affirmed.G. W. Shields, for plaintiff in error.

H. A. Whipple and Charles F. Tuttle, for defendants in error.

OLDHAM, C.

This was an action by the plaintiff brewing company against the defendants to recover on a bond for the purchase price of beer sold by the plaintiff to the defendant German Village Company. The material allegations of the petition are that the plaintiff is a corporation organized under the laws of the state of Illinois, and that the defendant German Village Company is a corporation organized under the laws of the state of Nebraska, and doing business in the city of Omaha; that from the 21st day of March, 1898, and up to the 4th day of June, 1898, the German Village Company was a copartnership consisting of Charles F. Beindorff and John C. Whipple; that on the 4th day of June, 1898, the said partnership was dissolved, and all the rights, credits, effects, and contracts were assigned to, and became the property of, the German Village Company; that among the effects so assigned was a concession issued to the copartnership by the Trans-Mississippi & International Exposition Company for the running of the German Village on the East Midway of the said Trans-Mississippi & International Exposition Company's grounds, and also an agreement between the plaintiff and the said copartnership. A copy of this agreement is attached to, and made a part of, the petition. The material conditions of this agreement are that the copartnership agrees to purchase from the P. Schoenhofen Brewing Company, through its local representative in the city of Omaha, Henry Rohlff, all malt beer in bottles and in wood used by the said parties of the second part, or sold by them in the said German Village (except that they shall have the right to purchase and sell beer manufactured in other countries than the United States), and pay for the same at the end of each week. Here follows the price which they agree to pay, and their agreement to return the empty kegs, cases, and bottles to plaintiff's agent at the German Village. This is followed by an agreement on the part of the plaintiff to pay the sum of $3,000 to the parties of the second part to aid in the construction of the German Village. There were other conditions in this agreement, which are immaterial in this controversy. But it was further agreed in the contract that plaintiff should furnish and deliver the beer to the parties of the second part, in good condition, at the German Village. It was also agreed that the parties of the second part were to furnish a bond, in the penal sum of $5,000, conditioned for the faithful performance of the conditions of the agreement, with Charles Beindorff, father of said Charles F. Beindorff, as surety thereon. It was also agreed that the concession should not be assigned by the said parties of the second part without notification to the party of the first part, and that the bond should be held liable for the fulfillment of this contract by such assignee. This contract was signed by the P. Schoenhofen Brewing Company and by its secretary and Charles F. Beindorff and John C. Whipple. To this contract is attached a bond as provided for in the contract, in the penal sum of $5,000. This bond runs to the P. Schoenhofen Brewing Company, and provides for the faithful performance of the contract above set out by the parties of the second part, and it is signed by Charles F. Beindorff and John C. Whipple as principals, and Charles Beindorff as surety. The petition then goes on and alleges that at the time of making this agreement the plaintiff had no license to sell malt, spirituous, or vinous liquors in the city of Omaha and state of Nebraska, but that it had an agent, whose name is Henry Rohlff, who had a license, duly issued to him by the proper authorities, to sell malt, spirituous, and vinous liquors in the city of Omaha and state of Nebraska, and that, for the purpose of complying with the liquor laws of the state of Nebraska and the city of Omaha, it was provided in the contract that the sales contemplated in the said contract should be made through the said Henry Rohlff, as agent for plaintiff. The petition then proceeds to set out the sales of beer made to the German Village by the plaintiff in reliance on this contract and bond, and sets up, by proper allegation, that there is due the said plaintiff on said contract for beer so sold and delivered the sum of $882, and that the conditions of the bond have been broken by failure of the principals therein to pay for said beer as provided for in their contract, and prays judgment against all the defendants for the sum of $882 and interest. To this petition the defendants interposed a demurrer. The demurrer was sustained by the trial court, and, plaintiff refusing to further plead, its petition was dismissed, and it brings error to this court.

An examination of the contract on which plaintiff's action is founded shows clearly that the contract was made in Nebraska, and was for the sale and delivery of intoxicating liquors within this state by one who had no license or legal authority to engage in the traffic, but who sought to avoid the consequences of his act by having the sale and delivery of the goods nominally made by Henry Rohlff, a licensed dealer in intoxicating liquors, as his agent. Henry Rohlff is neither a party to the suit nor the contract and bond on which the right of action is predicated. The only reference to Henry Rohlff in the contract is that the defendants agree to purchase from the plaintiff, through its local representative in the ...