Samuel Bowman Distilling Co. v. Nutt

• Decision Date: 05 March 1886
• Citation: 10 P. 163,34 Kan. 724
• Parties: SAMUEL BOWMAN DISTILLING COMPANY, a Corporation, v. A. R. NUTT
• Court: Kansas Supreme Court

10 P. 163

34 Kan. 724

SAMUEL BOWMAN DISTILLING COMPANY, a Corporation, v. A. R. NUTT

Supreme Court of Kansas

March 5, 1886

Error from Atchison District Court.

ACTION brought by The Samuel Bowman Distilling Company, a corporation, against A. R. Nutt, before a justice of the peace of Atchison county, Kansas, to recover $ 113.42, for intoxicating liquors sold and delivered by the plaintiff to the defendant. With the plaintiff's bill of particulars it filed two exhibits, as follows:

EXHIBIT A.

No 22.--ATCHISON, Mch. 9, 1883.--Bowman Distilling Company, St Louis, Mo.: We have this day ordered through your Mr Schullman, following goods, to be shipped by Missouri Pacific at lowest rates:

1 B. Millwood, Spring 81

$ 1 75

5 G. Sweet Catawba

1 00

10 G. Cal. Riesling

1 25

12 Oporto Wine

1 90

Which please forward to us, and for which we agree to accept draft at 90 days from date of shipment.

Yours respectfully, A. R. NUTT.

EXHIBIT B.

ST. LOUIS, Mch. 13, 1883.--A. R. Nutt, Atchison, Kan., bought of Bowman Distilling Company, ninety days, or 3 per cent. off if paid within 10 days:

1 brl. Millwood, Spring 81, 40 1/2 galls., $ 1.75

$ 70 87

1 keg, .75, Sweet Catawba, 5 galls., at $ 1

5 75

1 keg, $ 1, Cal. Riesling, 10 galls., $ 1.25

13 50

1/10 cask Oporto Port, 12 galls., $ 1.90

22 80

Cartage

50

$ 113 42

A trial was had before the justice of the peace, and judgment was rendered in favor of the plaintiff and against the defendant, and the defendant appealed to the district court. At the February Term, 1884, a trial was had before the district court, without a jury, and the court made the following findings and conclusions, to wit:

"CONCLUSIONS OF FACT.

"1. On March 9, 1883, the plaintiff was, and ever since it has been, a corporation, duly organized and existing under the laws of the state of Missouri, having its principal office and place of business at St. Louis, Missouri, and engaged as a wholesale dealer and jobber of whiskies, wines and other intoxicating liquors, which business was on March 9, 1883, and ever since has been, lawful in the state of Missouri.

"2. On March 9, 1883, and for some considerable time afterward, the defendant, A. R. Nutt, was the keeper of a billiard-hall and saloon combined, in the city of Atchison, in Atchison county, Kansas, and his business in part was the sale of intoxicating liquors in said saloon without having any permit from the probate judge therefor, and for other than medical, scientific and mechanical purposes; and such intoxicating liquors were sold by said A. R. Nutt, by the drink, over a bar in said saloon, and so far as his business included the sale of intoxicating liquors, it was wholly unlawful.

"3. On March 9, 1883, Henry Shullman, the duly-authorized traveling agent and salesman of the plaintiff, called upon said A. R. Nutt at said billiard-hall and saloon at Atchison, and solicited said A. R. Nutt to agree to purchase and to order from the plaintiff intoxicating liquors, and said A. R. Nutt then and there agreed to purchase the certain intoxicating liquors sued for in this action, at certain agreed prices; and said agent agreed to order said liquors from the plaintiff at St. Louis, and to have them forwarded to said A. R. Nutt at Atchison, by railroad; said order, however, to be subject to the approval of the plaintiff. Said agent thereupon wrote and the said A. R. Nutt signed the instrument, a true copy of which is annexed to the plaintiff's bill of particulars as exhibit 'A,' and said agent forwarded said instrument to the plaintiff at St. Louis. It was the understanding of the said agent and said A. R. Nutt that the plaintiff was to select from its stock of liquors at St. Louis the goods ordered, which were to correspond with certain samples shown to said A. R. Nutt by said agent at the time, and to ship the same at St. Louis by railroad, consigned to said A. R. Nutt at Atchison.

"4. Said agent of the plaintiff knew at said time the nature of the business of said A. R. Nutt, and that said liquors were ordered for the purpose of unlawfully selling the same at retail over said bar at said place in Atchison, for use as beverages, and not for medical, scientific and mechanical purposes, nor for any of said last three named purposes.

"5. The plaintiff duly filed said order, and shipped said whiskies and wines consigned to said A. R. Nutt at Atchison, and he received the same, except that about four gallons of the California wine ordered at $ 1.25 per gallon leaked out of the cask, and the plaintiff's said agent, who afterward called again upon said A. R. Nutt to solicit another order for liquors, agreed to suffer the loss of said leakage. A true account of the whisky and wines so shipped appears as exhibit 'B,' attached to the plaintiff's bill of particulars.

"6. Said A. R. Nutt sold said whisky and wines in the usual course of his business as aforesaid; but he has never paid for the same nor any part thereof, although payment has often been demanded of him by the plaintiff.

"CONCLUSIONS OF LAW.

"1. The enforcement of said contract for the sale of said intoxicating liquors under the circumstances of this case would be against the public policy of this state.

"2. The plaintiff is not entitled to recover in this action.

"3. The defendant is entitled to judgment against the plaintiff for costs."

Upon these findings and conclusions the court below rendered judgment in favor of the defendant and against the plaintiff for costs, and to reverse this judgment the plaintiff brings the case to this court.

Judgment reversed.

Jackson & Royse, for plaintiff in error.

Tomlinson & Eaton, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in Atchison county, by the Samuel Bowman Distilling Company, a corporation, against A. R. Nutt, for intoxicating liquors previously sold and delivered by the plaintiff to the defendant. The plaintiff is a wholesale liquor dealer at St. Louis, Missouri, and its sales there made of intoxicating liquors are legal and valid. The defendant is a saloon-keeper in Atchison, Kansas, and his sales there made of intoxicating liquors are illegal, and contrary to the statutes of Kansas. The liquors sold in the present case were first ordered by letter by the defendant at Atchison, Kansas, at the instance of the plaintiff's agent, who was then in Atchison and had knowledge of the kind of business in which the defendant was engaged, and presumably had knowledge also of the laws of Kansas, and therefore had knowledge that the defendant was engaged in the sale of intoxicating liquors in violation of law, and that he desired to purchase the liquors in the present case for such unlawful purpose. The order of the defendant for the liquors was subject to the approval or disapproval of the plaintiff at St. Louis, Missouri. The plaintiff, however, approved the order, selected the liquors from its stock of liquors at St. Louis, Missouri, and then delivered the same to a railroad company, to be by it transported to the defendant at Atchison, Kansas, at the defendant's cost, and the defendant was to pay the plaintiff the value of such liquors at the end of 90 days, which time elapsed before this action was commenced, and the defendant had not then and has not since paid for such liquors. The defendant claims that the plaintiff sold the liquors to him knowing that he would again sell them in Kansas in violation of the laws of Kansas; and therefore he claims that the sale, though legal in Missouri, was illegal and void as to Kansas, and that the plaintiff cannot recover in Kansas anything from the defendant for the liquors sold and delivered by the plaintiff to the defendant.

The plaintiff constructively had knowledge, in Missouri, through the actual knowledge of its agent, in Kansas, that the defendant purchased the liquors for the purpose of unlawfully selling the same in Kansas; but there is no pretense that the plaintiff in any manner participated in this unlawful purpose, and no pretense that it was to derive any benefit from any of the illegal acts perpetrated, or intended to be perpetrated, by the defendant in Kansas. So far as appears from the record, the plaintiff sold these liquors in the same manner and for the same prices as it sells like liquors to its other customers, who purchase the same for lawful and legitimate sale or use. Nor did the plaintiff pack the liquors in such a manner as to conceal their real character or pack them in any manner different from the manner in which it packs like goods for its other customers, who purchase for lawful and legitimate purposes. So far as anything is shown in the record, it sold the goods for the same prices and packed them in the same manner that it would sell and pack like goods sold to legitimate druggists in Kansas, who have...