Perko v. Rock Springs Commercial Co.

• Decision Date: 27 September 1927
• Docket Number: 1371
• Citation: 37 Wyo. 98,259 P. 520
• Parties: PERKO v. ROCK SPRINGS COMMERCIAL CO. [*]
• Court: Wyoming Supreme Court

259 P. 520

37 Wyo. 98

PERKO v. ROCK SPRINGS COMMERCIAL CO. ^[*]

No. 1371

Supreme Court of Wyoming

September 27, 1927

ERROR to the District Court, Sweetwater County VOLNEY J. TIDBALL Judge.

Action by Rock Springs Commercial Company against Mike Perko. Judgment for plaintiff, and defendant brings error.

Affirmed.

Fred W Johnson, of Rock Springs, for plaintiff in error.

An undertaking in attachment must be executed in the office of the clerk of court, 6119 C. S. The statute must be strictly followed, 6 C. J. 36; Horne Semple Co. v. Mitchell, 7 (Bush) Ky. 131; Waples Att. 173; Shinn Att. p. 272; 6 C J. 107, 108. The word "execute" has a distinct meaning. 23 C. J. 278; State v. Duncan (Mont.) 177 P. 249; 36 Cyc. 1114. It means to sign, seal and deliver. David v. Whitehead, 13 Wyo. 200; Anderson's Dict. A seller cannot recover the purchase price of goods sold for an illegal purpose. 13 C. J. 517; 23 R. C. L. 1317. The buyer intended to violate Sec. 2 Ch. 117 L. 1921. Mere knowledge of the seller of the buyer's illegal intention does not preclude recovery, but the rule is qualified to the extent that the seller must not participate in the unlawful intent of the buyer. Graves v. Johnson, 156 Mass. 211, 30 N.E. 818; 13 C. J. 519; Banchor v. Mansel, 47 Me. 58. The sale was a violation of Sec. 18 of the Federal Prohibition Act, 41 Stat. 313 and Ch. 117 L. 1921, and defeats recovery. Vining v. Bricker, 14 Oh. St. 334; Story Conts. 488, 613, 614; 23 R. C. L. 117; 12 L.R.A. (N.S.) 575 and note; 2 Elliott Conts. 6; Pangborn v. Westlake, 36 Ia. 546; Handy v. Co., 41 Minn. 188; Corporation v. Ofsa (W. Va.) 119 S.E. 859, 29 A. L. R. 1053. It is unlawful to possess intoxicating liquor in the home unless acquired before the passage of the Act. Cunard v. Mellon, 262 U.S. 100.

Frank Yates for defendant in error.

There was a substantial compliance with the statute in the execution of the undertaking in attachment. Brown v. Clayton, 12 Ga. 564; State v. Young, 23 Minn. 560. The word "execute" as used in the statute means the accomplishment, or completion of an act or instrument. The action was to recover on account of goods sold and delivered. It was alleged in defense that the goods were sold for an unlawful purpose, to-wit, the manufacture of wine, citing the Prohibition Act, Ch. 117 L. 1921. A contract of this character is not illegal merely because the seller had knowledge of an illegal intention on the part of the purchaser, if the seller did not participate in the illegal intent by some affirmative act. The making of cider or non-intoxicating liquor from fruit juices for personal use is not unlawful. Blakemore Pro. 86. The sale was not illegal. U.S. v. Hill, 1 F. (2nd) 954; Blakemore Pro. (2nd Ed.) 600. The sale was made in good faith for lawful purposes without participation in or knowledge on the part of the seller, Rock Springs Commercial Company, of any unlawful intent on the part of the purchaser.

Before KIMBALL, Justice, RINER and CROMER, District Judges. KIMBALL, J., and CROMER, District Judge, concur.

OPINION

RINER, District Judge.

This is a proceeding in error instituted by plaintiff in error, Mike Perko, hereinafter referred to as the defendant, to review a judgment for $ 282.00 with interest and costs, obtained against him in the District Court of Sweetwater county by the defendant in error, Rock Springs Commercial Company, hereinafter designated as the plaintiff.

Plaintiff's petition is in the usual form upon an account for goods sold and delivered. The account set out shows that these goods consisted of three tons of grapes and four barrels. The entire purchase price was $ 482.00 on which an item of $ 200.00 cash credit was allowed, leaving the balance claimed $ 282.00. Shortly after the action was instituted plaintiff filed an affidavit for attachment and an attachment bond was given, which appears to have plaintiff's signature attached thereto and that of a surety, who executed the usual form of justification of sureties before the county clerk of Sweetwater county. The bond bears the written approval of the clerk of the District Court of said county. Garnishee proceedings were also had in the matter and certain funds belonging to the defendant were thereby impounded.

In his answer defendant denies the alleged indebtedness and that the account was correct. As a second and third defense he pleads a payment made by him to a justice of the peace in an action brought by plaintiff to recover $ 175.00, it being alleged that the cause of action sued on and that before the justice were identical and that the justice court proceeding was still pending. Defendant's fourth defense alleged that at the time defendant ordered the grapes plaintiff, as part of the contract and the consideration for the sale thereof, "warranted the same to be fit and proper for making wine, and intoxicating liquor, prohibited by the laws of the State of Wyoming and the laws of the United States;" that plaintiff sold and delivered the same, as well as the barrels, knowing at the time of said sale and delivery that the grapes were to be made into wine and intoxicating liquor, the making and possession thereof being prohibited by the laws of the State of Wyoming and of the United States, and that the barrels "were to be used as the container" of said wine in the process of making it. The fifth defense alleged a breach of the claimed warranty already mentioned to the effect; "that said grapes were musty, damp and green, and that they did not make wine, but vinegar, and that said grapes when received were in a spoiled condition and unfit for use in the making of wine." And a credit of $ 160.00 on the account is asked by reason of this alleged breach of warranty. Plaintiff's reply was a general denial af the allegations in the several defenses.

Defendant filed a motion to vacate the attachment upon the ground, among others, that "the undertaking of the plaintiff herein was not executed in the office of the clerk of the court." This motion was supported by an affidavit of defendant's counsel that "the said bond, as shown upon its face, was executed in the office of the county clerk and that the qualification of the surety of the plaintiff upon said bond was subscribed and sworn to before W. C. Lewis, county clerk, and not before the clerk" of the District Court.

Upon hearing had the Court denied the motion to vacate the attachment, an exception being taken and allowed to this ruling. The cause proceeded to trial and upon its conclusion plaintiff was given a judgment against defendant as heretofore recited, in which judgment the following appears:

"And the Court, having heard the evidence, finds that the plaintiff is a corporation; that the account set forth in plaintiff's petition is correct; that on October 20th, 1922, defendant purchased from plaintiff one ton of grapes to be used in the manufacture of intoxicating liquor, and four barrels, of the value of $ 182.00; that on October 28th, 1922, defendant purchased from plaintiff two tons of grapes to be used in the manufacture of intoxicating liquor, at the price of $ 300.00; that on February 26th, 1923, defendant paid $ 200.00 upon said account; that there is a balance due thereon in the sum of $ 282.00, together with interest at the rate of seven per cent per annum from November 28th, 1922.

"The Court finds against the defendant upon his second and further answer to the plaintiff's petition; against the defendant upon his third defense set forth in his answer to plaintiff's petition; against the defendant upon his fourth defense set forth in his answer to plaintiff's petition, except that the Court finds that at the time said grapes were sold and delivered by plaintiff to defendant the plaintiff knew that said grapes were to be used for the making of wine and that the barrels included in said sale were to be used as the containers thereof in the process of said making; and the Court finds against the defendant upon his fifth answer and counterclaim contained in defendant's answer to plaintiff's petition."

A motion for a new trial was made and overruled and an exception allowed thereto. These proceedings for review were in due course commenced.

It is insisted that the trial court committed error in declining to vacate the attachment because the bond in that matter was not signed in the office of the clerk of the District Court and hence was invalid. Sec. 6119, W. C. S. 1920, reads:

"In no case shall the order of attachment be issued by the clerk until there is executed in his office, by sufficient surety of the plaintiff, to be approved by the clerk, an undertaking in a sum equal to double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attachment if the order prove to have been wrongfully obtained."

The affidavit of counsel for the defendant in support of this contention embodied in the motion to dismiss the attachment, recites, as we have seen, "that said bond as shown upon its face was executed in the office of the county clerk." But an inspection of the original undertaking, as it appears in the original papers before us, discloses merely that the justification of the surety was signed and sworn to before the county clerk of Sweetwater county on February 1st, 1924. The undertaking itself, on its face, does not seem to show where it was signed, although it bears even date with the surety's justification and though the approval of the clerk of the District Court was not endorsed thereon until February 5th, 1924. The order of attachment was not issued until the date last mentioned.

But assuming that the undertaking was signed elsewhere than in the office of the clerk of the...