Sawyer v. Sanderson

• Citation: 88 S.W. 151,113 Mo. App. 233
• Court: Court of Appeal of Missouri (US)
• Decision Date: 01 June 1905
• Parties: SAWYER v. SANDERSON et al.<SMALL><SUP>*</SUP></SMALL>

88 S.W. 151

113 Mo. App. 233

SAWYER v. SANDERSON et al.^*

St. Louis Court of Appeals. Missouri.

June 1, 1905.

1. INTOXICATING LIQUORS — LICENSE — TRANSFER.

A bill of sale reciting the transfer of "all my goods, license, good will, etc., to my saloon," given at the conclusion of negotiations in which the license was considered, and in which it was agreed and understood that the saloon should be run by the buyers under the seller's name and license until the expiration of the license, and in pursuance of which it was so conducted, constitutes a transfer of the license, within the prohibition of Rev. St. 1899, § 2992.

2. SAME — EFFECT OF TRANSFER.

The inclusion of the seller's license in a sale, for a single and indivisible consideration, of a saloon, fixtures, and good will, renders the whole contract, and the note given therefor, void, under Rev. St. 1899, § 2992, prohibiting the transfer or assignment of a dramshop license, and under other provisions of the dramshop act, which contemplate the possession by a licensee of specified qualifications, and the award of a license by the county court only to an individual possessing those qualifications, and after specified proceedings, including the consent of taxpaying citizens and the giving of a bond.

Goode, J., dissenting.

Appeal from Circuit Court, Newton County; Henry C. Pepper, Judge.

Action by Thomas Sawyer against S. H. Sanderson and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

The suit is to recover a balance alleged to be due on a promissory note for the principal sum of $4,000, dated January 8, 1900, due 12 months after date, with 7 per cent. interest, payable to plaintiff, and executed by the defendants. Omitting caption, the answer is as follows: "Come the defendants, and, for answer to the petition, admit the execution of the note sued on, but deny any liability thereon. Defendants, for further answer, say: That the sole and only consideration for said note was the sale and transfer of a stock of intoxicating liquors and the business of a saloon from plaintiff to defendants, known as the Joplin Hotel Bar, in the city of Joplin, Jasper county, Missouri, and the good will and license, etc., hereinafter mentioned. That said liquors, etc., were sold and delivered to defendants with the express agreement, purpose, and intention on part of plaintiff that the same should be unlawfully used, vended, and sold by the defendants at retail in said Joplin Hotel Bar, in Jasper county, Missouri, for the purposes below mentioned, without defendants having any legal authority or license to sell or vend the same. That said liquors, business, good will, and licenses were so unlawfully sold at said county and state, and said business was therewith thereafter conducted, with the approval, sanction, aid, and consent of the plaintiff, without lawful license, and in open violation of the laws of the state of Missouri. That on the 8th day of January, 1900, at the date of said note and transfer of said saloon business, the stock of liquors and fixtures did not exceed two thousand ($2,000) dollars in value, and that the agreed consideration paid plaintiff, altogether, was four thousand ($4,000) dollars cash, and four thousand ($4,000) dollars in and represented by the note sued on. That in order to close said deal and obtain the execution of said note, and as an inducement to defendants to execute the same, and as a part of its consideration, plaintiff (being a regular, licensed dramshop keeper in said city, holding licenses therefor from said city, county, and state) assigned and delivered his said dramshop keeper's licenses for said county, state. and city to the defendants; and likewise, as a part of said transaction, and for the same purpose and consideration, the plaintiff at the same time sold his good will, as based on said licenses, in the said liquor and saloon business, to the defendants; and likewise, and for the same purpose, plaintiff, as part of said consideration for said note, guarantied to the defendants that the room in which said Hotel Bar was run and operated should not cost the defendants to exceed one hundred and fifty ($150) dollars per month for a period of one year from said date; and in pursuance of said sale and transfer of said saloon and business, and as part of said consideration, and as part of said transaction, and for said note, the plaintiff executed and delivered to the defendants a certain writing, of which the following is a copy: `Carthage, Mo., January 8, 1900. For and in consideration of the sum of eight thousand ($8,000) dollars, paid to me this day, I grant, bargain and sell to S. H. Sanderson and Geo. H. Thomas all my goods, license, good will, etc., to my saloon known as the Joplin Hotel Bar, located in the Joplin, Hotel, Joplin, Mo., and do guarantee the title to the same. I also agree to pay all bills of the said house up to date, and guarantee that Sanderson and Thomas can have the room that the saloon is now in, for at least one year, at one hundred and fifty ($150) dollars per month. Thomas Sawyer.' That pursuant to said agreement said plaintiff thereupon immediately delivered possession of said saloon and stock to defendants, who, with the knowledge, consent, aid, co-operation, and good will of plaintiff, engaged in the retail sale of said liquors at said Joplin Hotel Bar under said licenses, in said room, and under and in pursuance of said contract and the giving of said note. Defendants say that said sale and assignment of said license was in violation of section 2992, Rev. St. 1899, contrary to general law, and against public policy, and, by reason of the premises, said note is void and without consideration. Wherefore defendants ask to be discharged, and that they have judgment for costs." The reply was a general denial.

Defendants, having admitted the execution of the note, took the burden of proof. To sustain the issues on their part, they offered evidence showing that the note was given in part consideration for the sale and purchase of a saloon located in the city of Joplin, Mo., including liquors, cigars, etc., good will, and licenses. The question in controversy is whether or not the unexpired state, county, and city dramshop licenses held by plaintiff at the time of the sale were embraced in the sale, and furnished some part of the consideration for the purchase, and, if so, was the note void? To show that the licenses were embraced in the sale, both defendants testified that the licenses were included in the bargain, and it was understood they should go in on the trade, and that defendants might conduct the saloon business in the name of the plaintiff, and under his licenses, until the expiration of his state and county licenses. In corroboration of this testimony, defendants offered and read in evidence the following written bill of sale: "Carthage, Mo., Jan. 8, 1900. For and in consideration of the sum of eight thousand ($8,000) dollars, paid to me this day, I grant and bargain and sell, to S. H. Sanderson and Geo. H. Thomas, all of my goods, license, good will, etc., to my saloon, known as the Joplin Hotel Bar, located in the Joplin Hotel, Joplin, Mo., and do guarantee the title to the same. I also agree to pay all bills of the said house up to date, and guarantee that Sanderson & Thomas can have the room that the saloon is now in for at least one year at $150 per month. Thomas Sawyer." Defendants also offered and read in evidence the following admissions: "It is admitted that up to and at the time of the sale to the defendants the plaintiff had a license to keep a dramshop at the saloon known as the Joplin Hotel Bar; said license being taken out the 7th day of November, 1899, to expire on the 6th day of May, 1900. Dramshop license: Recites due petition and payment of $466.30 license tax, and the giving of bond by Tom Sawyer, who is `hereby authorized and permitted to keep a dramshop,' etc., `for six months at Joplin, commencing Nov. 7, 1899, and ending May 6, 1900.' Signed by county clerk and attested by seal of county court, Jasper county. The license of Sanderson next after the expiring of that to Sawyer, as referred to, is as follows: Dramshop license: Recites due petition and payment of $451.50 license tax and the giving of bond by S. H. Sanderson, who `is hereby authorized and permitted to keep a dram shop,' etc., `for six months at Joplin, commencing seventh of May and ending sixth November, 1900.' Signed by county clerk and attested by seal of county court, Jasper county." Three city licenses granted plaintiff for each of the months of February, March, and April, 1900, were also offered in evidence. The March and April licenses were taken out in the name of plaintiff, but were in fact procured and paid for by defendants.

The bill of sale was written out by defendant Thomas, and both he and his codefendant testified that plaintiff read it before he signed it. Plaintiff testified that he did not read the bill of sale, but admitted that it was read to him by Thomas before he signed it. Plaintiff further testified that the licenses may have been spoken of in the trade, but he could not say for certain that they were mentioned, but was positive there was nothing said about how the saloon should be run; that he made no inquiry about it, and did not know under what license the business was conducted. The following is taken from plaintiff's cross-examination: "Q. You knew that when you sold this saloon to Sanderson & Thomas that they were taking your licenses along with the saloon? A. If they wanted them. Q. You didn't know that was part of the contract; that that was put in the contract? A. That was put in the contract, I suppose, but I didn't know that was in the contract. Q. You knew that when Sanderson & Thomas took possession of that saloon, and you closed the contract with them, you knew the licenses were going into the deal? A. If they wanted them. They were...