State v. Davis.

• Citation: 62 W.Va. 500
• Court: Supreme Court of West Virginia
• Decision Date: 12 November 1907
• Parties: State v. Davis.

62 W.Va. 500

State

v.Davis.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1907.

Decided November 12, 1907.

1. Intoxicating LiQuoRs Telephone Order For Judgment.

A judgment of acquittal, in a case submitted to the court in lieu of a jury, on an agreed statement of facts, showing that the accused, a licensed retail dealer in intoxicating liquors, had received at his place of business a telephone message, ordering liquor, to be delivered at the place of residence of the customer, and there to be paid for. and accepted the order, selected from his stock the article ordered, and delivered it and received payment therefor in accordance with the terms of the order, is not erroneous, (p. 509.)

2. Same Dealer's Place of Business Sale Where Mode.

On a writ of error in such case, the State is regarded as a demurrant to evidence, and it would be competent for a jury to find, on the facts agreed and common information and knowledge of the practice of retail dealing, which they have the right to consider, that the sale was complete, so as to pass the title of the liquor, at the dealer's place of business. (p. 509.)

3. Same Solent Place of Business Not of Place of Delivery When:

A sale by a retail dealer in intoxicating liquors, in which the delivery is made within the town or county in which he lias a license, in fulfillment of an order, received and accepted at the place of business, designated in his license, from Ids stock of goods kept in that place, is deemed by the law a sale at the place of business, and not a sale at the place of delivery, unless it appears that the place of delivery was agreed upon as the place of sale. (p. 510.)

4. Statute Exposition Of.

A contemporary exposition of a statute, uncertain in its meaning, recognized and acquiesced in, for a long period of time, by the officers charged with the duty of enforcing it, the courts, the Legislature and the people, will be adopted unless it is manifestly wrong. (p. 511.)

Error to Circuit Court, Cabell County. Action by the State of West Virginia against C. A. Davis. Judgment for defendant, and plaintiff brings error.

Affirmed.

Clarke W. May, Attorney-General, and George S. Wallace, for the State.

Williams, Scott & Lovett, and George I. Neal, for defendant.

poffenbarger, judge:

The criminal court of Cabell county, on the trial of C. A. Davis, charged with having sold intoxicating liquors without having a State license for the sale thereof, found the accused not guilty and discharged him on the following facts, a jury having been waived, the case submitted to the court in lieu thereof and the facts agreed:

"Charles Davis, the defendant, is a resident of the City of Huntington, county of Cabell and State of West Virginia. He is engaged in the business of selling spirituous liquors, etc., and is duly licensed to sell the same at No. 755 2nd Ave., in said city. And for a more particular description, his place of business where he keeps and maintains a saloon, is the south-west corner made by the intersection of Second Avenue and Eight Street in said City of Huntington, that

on the day of October, 1905, and within one year prior

to the finding of the said indictment, one Emma McDonald, residing with one Bettie Mead, at No. on Second Avenue, in said City, and distant about one square from the said defendant's saloon, gave an order from the house where shre resided, over the telephone, to the defendant, at his place of business, to forward to her at her place of residence a certain quantity of beer, and that she would, when the beer was delivered to her, pay the price for the same; that pur- suant to said order so made, the defendant had forwarded to her the beer by his porter and that when the porter delivered it to her, she paid him for it.

4'She stated that she had a number of times ordered beer in this way; that same had been sent to her by the defendant and that when delivered, she would pay for it and she always knew the price of the beer; that one time, or perhaps oftener, she had, when phoning to the defendant for beer, stated to him that she did not have the necessary change, but that she had money of such and such denomination, and that if defendant would send with the beer the requisite change, that, in that manner, she could and would pay for the beer; that at such time or times the defendant had sent the necessary change as requested, and that in that way she had paid for the beer."

The circuit court of said county having refused a writ of error, one was granted by this Court.

The authorities seem to hold almost uniformly that a sale within the meaning of all statutes making certain sales illegal, is a complete sale, passing the title to the liquor from the vendor to the vendee, not a mere executory contract of sale. "The offense of illegally selling liquor is not committed by a bargain or executory contract of sale. There must be a completed sale, which passes the property, consummated by the act of the parties as distinguished from the operation of the law, and amounting to a vending and purchasing of the particular commodity. It is not necessary that the liquor should have been paid for by the purchaser. But there must have been a delivery of the liquor to him." 23 Cyc. 180. This is the construction, given to our statute in State v. Hughes, 22 W. Va. 743. State v. Flanagan, 38 W. Va 53, applies the same test. The all important question, therefore, is what constitutes an executed contract of sale. All the authorities say this is a question of the intention of the parties, and that it is possible for them to make the title pass at such stage of the negotiations as they may see lit, provided there is an offer of purchase or sale on the one hand, and accepted on the other hand, and an agreement as to the identity of the thing to be sold and the price to be paid for it. So far as the possession is concerned, it may remain with the seller or pass to the buyer.

Actual delivery into the hands of the vendee is not essential. Morgan v. King, 28 W. Va. 1; Hood v. Blade, 29 W. Va. 245. Usually when the thing sold remains in the possession of the seller or some third person, and the sale is regarded as complete, there is no duty resting upon the vendor to make an actual removal thereof from his premises or delivery thereof into the possession of the vendee. This is a circumstance bearing on the question of intention, which, in many cases, has controlling force. It was regarded as such in Pleasants v. Pendleton, 6 Rand. 473; Dixon v. Myers, 7 Grat. 240; Haxall v. Willis, 15 Grat. 434; Morgan v. King, 28 W. Va. 1; and Hood v. Black, 29 W. Va. 245. Indeed, there are few instances in which the title is said to have passed, when, by the contract, the vendor has taken it upon himself to make an actual delivery at a given place. Thus, in Bloyd v. Pollock, 27 W. Va. 75, the vendor agreed to deliver the article sold at a railway depot, and it was held that the title did not pass, and the sale was not executed and complete, until after the delivery had been made as stipulated.

Notwithstanding these apparently arbitrary rules, Judge Johnson, speaking for this Court in Morgan v. King, after having reviewed a number of decisions illustrating the operation of these principles, declared the general rule to be, that the intention of the parties controls, whatever it may have been. The rule was enunciated in the following terms:" It is very evident from these cases, that the general rule needs qualification. The intention of the parties in a contract of this character as in any other contract in the agreement; and the general rule, that we have so often referred to in the cases cited, is but the expression of what the judges thought in each particular case was the agreement of the parties. It will not be denied by any one, that the parties can expressly agree, that the article purchased shall pass at once to the buyer, although they are to be measured, weighed or counted, and the price is to be precisely ascertained and paid in the future. In every case the inquiry is: What was the intention of the parties? When that intention is ascertained the law will respect it. The question, whether a sale of personal property is complete or only executory, is to be determined from the intent of the parties as gathered from their contract, the situation of the thing sold and the circumstances surrounding the sale. Where the goods sold are sufficiently designated, so that no question can arise as to the thing intended, it is not absolutely necessary, that there should be a delivery, or that the goods should be in a deliverable condition, or that the quality or quantity, when the price depends upon either or both, should be determined; these are circumstances indicating intent but are not conclusive. But where anything is to be done by the vendor or by mutual concurrence of both parties for the purpose of ascertaining the price of the goods, as weighing, testing or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things in the absence of anything indicating a contrary intent is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods are ascertained and are in such a state, that they may and ought to be accepted. Where the contract, the situation of the things sold and the circumstances surrounding the sale, are such as to justify a jury in finding that the sale was complete, and that the title of the property passed to the buyer, the trial court ought not and a fortiori the Appellate Court will not set aside the verdict."

In State v. Hughes, this Court, in determining, from the facts disclosed by the record, the place of sale, in order to fix its character as legal or illegal, applied the rules governing sales generally. When the statute does not prescribe what shall constitute a sale, legal or illegal, under the laws regulating the traffic in liquors,...