Ruemmeli v. Cravens

• Decision Date: 10 September 1903
• Citation: 74 P. 908,13 Okla. 342,1903 OK 93
• Parties: RUEMMELI v. CRAVENS. [*]
• Court: Oklahoma Supreme Court

74 P. 908

13 Okla. 342, 1903 OK 93

RUEMMELI v. CRAVENS. ^[*]

Supreme Court of Oklahoma

September 10, 1903

Syllabus by the Court.

1. Where R., who is a nonresident of the territory, enters into a contract with C., and employs C. as his agent to sell intoxicating liquors at wholesale within the territory without the procurement of a license therefor by R., and C procures a license and conducts the business in his own name without disclosing the agency, held, that such contract and the sales thereunder are in violation of the liquor laws of the territory; and held, further, that where an accounting has been had between the parties, and C. has failed to fully account for all the moneys and property received by him for the benefit of R., an action cannot be maintained by R. upon such contract to recover the amount which C. failed to account for, and which amount it is alleged that C. wrongfully embezzled and appropriated to his own use.

2. One who has procured a license to sell intoxicating liquors is thereby authorized to carry on a business for himself only, and sell his own goods, but is not authorized to carry on a business for some other person, as agent or otherwise, or to sell the liquors of any other person, under said license.

Irwin J., dissenting.

For dissenting opinion see 76 P. 188.

Action by Albert Ruemmeli against William Cravens. Judgment for defendant, and plaintiff brings error. Affirmed.

This action was commenced in the district court of Kay county by Albert Ruemmeli, plaintiff in error, against William Cravens, defendant in error, to recover the sum of $784.55, which it was alleged had been embezzled and appropriated by the defendant while acting as the agent of the plaintiff in wholesaling beer, malt liquors, and ice in Kay county, Okl. The petition alleges the employment of the defendant as agent to sell, handle, and distribute beer, ice, and malt liquors, and to collect the money for the same, within Kay county, Okl., at a monthly salary of $75, and necessary expenses in handling and selling beer, ice, and malt liquors; that the defendant entered upon his duties as such agent about May 1, 1896, and continued as such until May 1, 1900, at which time the defendant was discharged, and was paid in full all his salary and expenses by the plaintiff; that during the period of the agency the defendant fraudulently misappropriated and embezzled, and converted to his own use and benefit, certain moneys collected by him in the course of his business as agent for the plaintiff, which he had received as proceeds of the goods and merchandise furnished by the plaintiff and sold by the defendant. The petition contains a statement of some of the different items which it is claimed were unaccounted for and embezzled. The petition also alleges certain fraudulent overcharges, of which the plaintiff had no knowledge at the time of the settlement. At the time of the commencement of the suit there was an order of attachment issued, and certain property levied upon. The answer filed by the defendant denied the allegations of fraud and embezzlement, as well as the indebtedness, and admitted the agency and the sale of the beer, ice, and malt liquors. The answer further shows that the agreement of agency for the sale of the liquors was made within the territory of Oklahoma; that the defendant was employed by the plaintiff, at a regular stipulated salary, to act as agent, manager, and solicitor of said plaintiff, to sell, dispose of, and control the sale of, beer, beer products, and malt liquors of the Pabst Brewing Company, and pursuant to said agreement this defendant did during the aforesaid period, from the 1st of May, 1896, to the 1st of May, 1900, sell the same at wholesale for said plaintiff in said counties of Kay, Pawnee, and Payne; that the same was sold by this defendant under said contract for the exclusive use and benefit of said plaintiff, and this defendant did not share in any of the profits arising from the sale of said goods for the said plaintiff. The answer further showed that all of said sales during all of said time were made for and on behalf of the said plaintiff, and that the said plaintiff, during all of said time from the 1st day of May, 1896, to the 1st day of May, 1900, was not authorized to conduct business in wholesaling malt, spirituous, and vinous liquors at or within either of said counties in said territory, and that said goods so furnished by the plaintiff were furnished, and all of said sales were made, with the full knowledge of the fact that said plaintiff had no license to conduct the business of wholesaling malt, spirituous, and vinous liquors in said counties of Kay and Pawnee, and that all of the sales, contracts, agreements, and arrangements for goods furnished by the plaintiff, and by said plaintiff distributed, through its agent, in said counties of Kay and Pawnee, during the time from the 1st day of May, 1896, to the 1st day of May, 1900, were illegal and void, and against public policy, and that the plaintiff was not authorized to conduct the business of wholesaling malt, spirituous, and vinous liquors, and that the items sued for were items for the collection of moneys secured for beer sold by the plaintiff during the time from May 1, 1896, to May 1, 1900. A motion to dissolve the attachment was made, decision upon which was withheld until after judgment was rendered. The pleadings contain other allegations, which are not deemed necessary to be shown here.

The cause being called for trial, and a jury impaneled, Mr. J. F. King, attorney for plaintiff, made the following statement to the jury:

"May it please the court. Gentlemen of the Jury: We expect in this case the evidence will show the following facts: That during the years 1896, 1897, 1898, 1899, and 1900, during all the times covered by plaintiff's petition in this case, the plaintiff, Albert Ruemmeli, is, and was, and ever since has been, a resident of the city of St. Louis, in the state of Missouri, and that during none of these times has he been a resident of the territory of Oklahoma. That he was engaged in the sale of malt liquors throughout the country generally. That he was engaged in handling the Pabst product over a certain territory, and, desiring to establish agencies, he made and entered into an agreement some time in the early part of the year 1896 with the defendant in this case William Cravens, by which William Cravens was to secure a license in his name (that is, in William Cravens' name) in this (Kay) county, Oklahoma Territory, and possibly some other counties in this territory. That Mr. Ruemmeli was to furnish Mr. Cravens beer and ice, and that Mr. Cravens was to sell the beer and ice to retail dealers in this county who were lawfully licensed to sell the same. That Mr. Cravens was to have the entire charge, management, and control of that business, was to look after it, and that he was to exercise his discretion in his position according to the laws of the territory of Oklahoma, and sell it according to the laws of the territory of Oklahoma, and in all manner conduct his business subject to the laws of the territory of Oklahoma. That this place of business was established at Ponca City Oklahoma, and that this beer and ice, and beer particularly, was to be furnished upon orders, either in car-load lots or in certain packages, from the brewery, in Milwaukee, Wis. That Mr. Ruemmeli was to pay to Mr. Cravens the sum of $75 per month. That he was to pay to him for his services in that business the sum of $75, and his reasonable and rightful expenses incurred in the conduct of that business. That Mr. Cravens during all this time (that is, during all the times I have mentioned) secured territorial licenses authorizing him to sell and dispose of malt, spirituous, and other liquors under the liquor license law in and through Kay county, Oklahoma Territory, and possibly other counties, and he at all times held these licenses. That Mr. Cravens entered upon his duties as agent in the sale of this beer and ice. That that business was conducted by Mr. Cravens in his own name, using his own letter heads--managed by Mr. Ruemmeli in no way whatever, except to receive his accounts from him and his money. That business was conducted by Mr. Cravens up to the 1st day of May, 1900, and he sold quite an amount (I believe $7,000) of this beer and ice in this county to the retail dealers of the county, and possibly ice to outside parties. That, at a settlement between these parties--one of the settlements-- I believe about the 1st day of May, 1900, that the books which Mr. Cravens kept, showing his transactions, were submitted to the representative of Mr. Ruemmeli. That he represented to Mr. Ruemmeli, through his agent, that those books contained a true and correct statement of the business which he had done in this county; and that, among other things, he had charged up as claim against Mr. Ruemmeli one of $50 about May 1, 1900, and that originated in the fact that he took $50 of this money that had been collected, and invested in a lot. It may be the evidence will show that was by consent of Mr. Ruemmeli, but it was to be held by him in trust; and about the 15th day of July he took $50 of this money and paid it on the balance of that lot. That on June 2, 1899, he paid for the building in part--paid for the lumber that went into the building located upon that lot that stood in the name of William Cravens. That he paid $7 on June 5th, or about that time, and he paid $7.50 and $7.85 for some other material which went into that building, and that Mr. Cravens appropriated that lot to himself. He sold the lot afterwards, and put the money into his pocket, and has never accounted to Mr. Ruemmeli for it, and refuses to account with us for...