State v. Rosenberger

• Decision Date: 06 June 1908
• Citation: 212 Mo. 648,111 S.W. 509
• Parties: STATE v. ROSENBERGER.
• Court: Missouri Supreme Court

111 S.W. 509

212 Mo. 648

STATE v. ROSENBERGER.

Supreme Court of Missouri.

June 6, 1908.

1. SALES — OPERATION AND EFFECT — TRANSFER OF TITLE — DELIVERY THROUGH CARRIER.

As a general rule, the delivery of goods by the vendor to the carrier, when they are to be sent in that way, is equivalent to delivery to the purchaser, subject only to the right of stoppage in transitu, and this is true, although the purchase money is afterwards collected by the vendor or agent at the place from which the goods are shipped.

2. SAME — SHIPMENTS C. O. D.

So far as concerns the title to goods delivered to a carrier for shipment, the same rule applies to C. O. D. shipments as to those in ordinary cases, and the title passes at the place of shipment, unless there is an express contract to the contrary

3. INTOXICATING LIQUORS — OFFENSES — SALE — PLACE OF SALE.

Where intoxicating liquors are ordered to be shipped to the purchaser C. O. D., the sale is completed when the liquor is delivered to the carrier, and the dealer is not guilty of selling the liquor at the place of destination.

4. SAME.

The sale of intoxicating liquor to one residing in a local option county being complete at the place of shipment when the liquor is shipped to him C. O. D., it is not material in a prosecution of the seller whether the transportation of the liquor into the local option county is a matter of interstate commerce or otherwise.

Woodson, J., dissenting in part.

In Banc. Appeal from Circuit Court, Webster County; Argus Cox, Judge.

Abram Rosenberger was convicted of violating the local option law, and he appeals. Reversed.

J. E. Haymes, J. C. Rosenberger, and Clyde Taylor, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

At the September term, 1907, of the circuit court of Webster county, under an information filed by the prosecuting attorney of said county, charging the defendant with selling one gallon of whisky in said county, on the 2d day of February, 1907, to one Ira Morton, in violation of the local option law in full force and effect in said county at that time. The defendant was found guilty, and his punishment assessed at a fine of $300. Defendant appealed in due course, after filing unsuccessful motions for new trial and in arrest of judgment.

The evidence tended to prove that the defendant was a wholesale and retail liquor dealer, with office and place of business in Kansas City, Jackson county, Mo., and did business under the trade name of "Penwood Company." Ira Morton, a resident of Marshfield, in Webster county, Mo., some time in January, 1907, ordered a gallon of whisky from said Penwood Company, and on February 2, 1907, the whisky was received by him from the agent of the Wells-Fargo Express Company at the office of said company in Marshfield. The whisky was sent in a package marked C. O. D., and Morton paid said express agent the price thereof, $3.50, at the time of delivery, and the express agent sent the money to defendant's office at Kansas City, where it was received. Morton testified that he mailed the order to defendant of his own motion, without any solicitation on the part of defendant, or any one on his behalf, and solely because he wanted the liquor for his own use. The express company received the package containing the whisky from one of the defendant's employés at Kansas City, and shipped the same to Morton, at Marshfield. The evidence further tended to prove that the transaction was carried out by defendant's clerks, without his knowledge, while he was at Hot Springs, Ark.; that, while he had been making similar sales and shipments on C. O. D. terms to parties in other states, he had no knowledge that his clerks were making for him any such shipments to any local option county in Missouri; that he had never solicited any business of that kind in Missouri either by agent or through the mails; and that up until the time of his arrest he was unaware that any such shipments had been made, nor had he authorized any. The state introduced evidence tending to prove that at the time of the alleged sale of liquor, and prior thereto, the local option law was in force in Webster county.

The important question presented by this appeal is whether the place of sale of the liquor which the defendant is charged with selling unlawfully was in Webster county, or Jackson county, Mo. Defendant insists that the sale was at Kansas City, Jackson county, where he was authorized by law to sell liquor, and that he was guilty of no offense in accepting and filling an order from a party in a local option county requesting the shipment to him C. O. D. of a specified amount of liquor to a point in said local option county of Webster. As a general rule, the delivery of goods by the vendor to the carrier, when the goods are to be sent that way, is equivalent to delivery to the purchaser, subject only to the right of stoppage in transitu. 2 Kent's Com. 490; State v. Wingfield, 115 Mo. 428, 22 S. W. 363, 37 Am. St. Rep. 406; Kerwin v. Doran, 29 Mo. App. 397; Garbracht v. Commonwealth, 96 Pa. 449, 42 Am. Rep. 550; Dunn v. State, 82 Ga. 27, 8 S. E. 806, 3 L. R. A. 199. And this is true although the purchase money is afterwards collected by the vendor or agent at the place from which the goods are shipped. State v. Hughes, 22 W. Va. 743. But when the goods are shipped upon order C. O. D., as in the case at bar, there is much conflict in the authorities as to where and when the title passes — that is, whether at the point of shipment or at the point of destination — upon payment of the purchase price. In American Express Co. v. Iowa, 196 U. S. 133, 25 Sup. Ct. 182, 49 L. Ed. 417, it is said: "True, as suggested by the court below, there has been a diversity of opinion concerning the effect of a C. O. D. shipment; some courts holding that under such a shipment the property is at the risk of the buyer, and therefore that delivery is completed when the merchandise reaches the hands of the carrier for transportation; others deciding that the merchandise is at the risk of the seller, and that the sale is not completed until the payment of the price, and delivery to the consignee at the point of destination." Among the authorities which hold that a sale C. O. D. is not complete until delivery, acceptance, and payment of the purchase price by the person ordering the goods may be cited U. S. v. Shriver (D. C.) 23 Fed. 134; U. S. v. Cline (D. C.) 26 Fed. 515; State v. U. S. Express, 70 Iowa, 271, 30 N. W. 568; State v. Wingfield, 115 Mo. 428, 22 S. W. 363, 37 Am. St. Rep. 406; State v. O'Neil, 58 Vt. 140, 2 Atl. 586, 56 Am. Rep. 557; State v. Goss, 59 Vt. 266, 9 Atl. 829, 59 Am. Rep. 706; U. S. v. Chevallier, 107 Fed. 434, 46 C. C. A. 402; Baker v. Bourcicault, 1 Daly, N. Y. 24; Crabb v. State, 88 Ga. 584, 15 S. E. 455; Dunn v. State, 82 Ga. 27, 8 S. E....