E.S. Shelby Vinegar Co. v. C.L. Hawn & Son

• Decision Date: 09 December 1908
• Citation: 63 S.E. 78,149 N.C. 355
• Parties: E. S. SHELBY VINEGAR CO. v. C. L. HAWN & SON.
• Court: North Carolina Supreme Court

63 S.E. 78

149 N.C. 355

E. S. SHELBY VINEGAR CO. v. C. L. HAWN & SON.

Supreme Court of North Carolina

December 9, 1908

Appeal from Superior Court, Catawba County; Ferguson, Judge.

Action by the E. S. Shelby Vinegar Company against C. L. Hawn & Son. Judgment for defendant, and plaintiff appeals. Affirmed.

Connor and Walker, JJ., dissenting.

In an action for the price of intoxicating liquor, which defendant claimed was illegally sold in prohibition territory, evidence that plaintiff had a United States license to sell intoxicating liquor was admissible as a quasi admission that the liquor was intoxicating.

W. A Self and A. A. Whitener, for appellant.

Hufham & Whitener, for appellee.

CLARK C.J.

This is an action on an account for sale of cider. It is found by the jury that the plaintiff's predecessor or assignor contracted in Hickory, N. C., for the sale of cider to be delivered in that town, that the cider sold was intoxicating and that plaintiff's predecessor knew that the sale of intoxicating liquor was prohibited in Hickory by the laws of the state at the time of such contract of sale and of the delivery. The court, upon these findings, entered judgment against plaintiffs for costs, on the ground that "the plaintiff cannot maintain an action for goods, the sale of which was prohibited by the laws of the state." The plaintiff excepted to the judgment, also to the admission in evidence of the plaintiff having United States license to sell intoxicating liquor. The plaintiff's predecessor or assignor was engaged in the business of selling this cider. There was evidence that it was intoxicating. It was competent to show, as an admission, or quasi admission, by the defendant that the cider was intoxicating; that it took out United States license to sell intoxicating liquors. This has been fully discussed and decided in State v. Dowdy, 145 N.C. 432, 58 S.E. 1002.

The exception to the charge upon the fourth issue is without merit. The court simply instructed the jury that it was an issue of fact, to be decided by them, whether the contract of sale was made in Hickory, and whether by its terms delivery was to be made in that town. The jury found that the contract was made in Hickory, that it was agreed that the delivery was to be made there, and that delivery was in fact made there. This made the transaction illegal. State v Johnston, 139 N.C. 640, 52 S.E. 273; State v Herring, 145 N.C. 418, 58 S.E. 1007. This is not a case where a drummer here took an order for liquor to be shipped in from another state, as was alleged in State v Hanner, 143 N.C. 632, 57 S.E. 154. There is no prayer for instruction raising that point; but, if there was, the contract being made in Hickory to deliver there would make this an illegal contract, and the courts will not lend their aid to collect an account based on such contract. If the liquor was shipped in from another state, that was simply the method the plaintiff took to procure it for his purposes. The delivery to defendant was...