Starace v. Rossi

• Decision Date: 31 January 1897
• Citation: 69 Vt. 303,37 A. 1109
• Parties: STARACE v. ROSSI.
• Court: Vermont Supreme Court

37 A. 1109

69 Vt. 303

STARACE

v. ROSSI.

Supreme Court of Vermont. Washington.

Jan. Term, 1897.

Exceptions from Washington county court; Taft, Judge.

Assumpsit by Starace against Rossi for price of wine. Heard on agreed statement of facts. Judgment for defendant. Plaintiff excepts. Affirmed.

Richard A. Hoar, for plaintiff.

W. A. Lord, for defendant.

ROWELL, J. The wine for the price of which recovery is sought was Italian wine, not made in this state, and commonly known as "sour wine." The like cannot be bought at the town agencies in this state, but only of Italian dealers, and it is used exclusively by Italians for culinary and drinking purposes and the wine in question was bought by the defendant for these purposes, and not for sale, gift, nor distribution contrary to law, and it was not thus disposed of. The order for it was taken at Barre by a broker, who was plaintiff's agent in the transaction, and was sent to and accepted by the plaintiff in New York, where he lived. It is unlawful to sell spirituous or intoxicating liquor in this state except as provided by statute, although the purchaser intends to mate, and does make, a lawful use of it. V. S. § 4460. This case does not come within the exception, but, on the contrary, plaintiff's agent incurred a penalty for his part in the transaction. V. S. § 4505. But it is said that it does not appear that the wine was spirituous or intoxicating, as it is not so stated in the agreed facts. There is a class of liquors that everybody knows to be intoxicating. Rum, gin, and brandy are of that class; and therefore an indictment for selling them contrary to law need not allege that they are intoxicating. State v. Munger, 15 Vt. 290. Nor need they be proved to be intoxicating. Com. v. Peckham, 2 Gray, 514; Snider v. State, 81 Ga. 753, 7 S. E. 631. In State v. Barron, 37 Vt. 57, it is said that wine belongs to that class, as it is universally acknowledged to be intoxicating, and held that it comes within the prohibition of the statute for the same reason, and that affirmative proof that it is intoxicating is not necessary. In Wolf v. State, 59 Ark. 297. 27 S. W. 77, the court took judicial notice that wine is intoxicating, as that is a matter of common knowledge. To the same effect, see 11 Am. & Eng. Enc. Law, 582; note to Lanfear v. Mestier, 89 Am. Dec. 694; Jones v. Surprise, 64 N. H. 243, 9 Atl. 384. The statute prohibits recovery for intoxicating liquor, or the value thereof, except such as is sold or purchased in accordance with its provisions. V. S. 4464. But it is claimed that the contract for the liquor was made in New York, and that, therefore, recovery therefor can be had. The answer to this is that the contract was, in part, at least, made in this state, and that prevents recovery as...