State v. Shields

• Decision Date: 25 May 1903
• Docket Number: 14,762
• Citation: 110 La. 547,34 So. 673
• Court: Louisiana Supreme Court
• Parties: STATE v. SHIELDS et al

34 So. 673

110 La. 547

STATE v. SHIELDS et al

No. 14,762

Supreme Court of Louisiana

May 25, 1903

See dissenting opinion of NICHOLLS, C. J., 34 So. 677.

Appeal from Fifth Judicial District Court, Parish of Winn; Marion Franklin Machen, Judge.

George L. Shields and R. P. Webb were convicted of selling liquor without a license, and Shields appeals. Reversed.

Barksdale & Barksdale, for appellant.

Walter Guion, Atty. Gen., and Allen Byber Hundley, Dist. Atty (Lewis Guion, of counsel), for the State.

MONROE J. BREAUX, J., concurs in the decree.

OPINION

MONROE, J.

Statement of the Case.

The defendants were indicted jointly for selling liquor without a license in the parish of Winn, and, Webb being absent Shields was tried alone, without a jury, upon the following statement of facts and agreement, to wit:

"In this case it is agreed by the district attorney representing the state, and Barksdale & Barksdale, attorneys representing the defendant George Shields, that we submit the case on the following statement of facts, leaving it to the court to decide as to whether or not, as a proposition of law, the facts thus submitted constitute the crime of retailing spirituous liquors in the parish of Winn, or whether the parish of Ouachita is to be considered, under the law, as the place of sale, and thus determine whether the defendant George Shields is guilty as charged in the bill of indictment.

"R. P. Webb is a resident of Monroe, Ouachita parish, Louisiana, and is there engaged in the business of a wholesale and retail liquor dealer, and pays license for conducting such business in Ouachita parish, and he pays no license in the parish of Winn, where local option prevails. George Shields, defendant on trial, is an employe and agent of said Webb, and is sent out at stated intervals to solicit and take orders for liquor; and that, within the six months next preceding the filing of the bill of indictment in this case the said Shields, acting as agent for the said R. P. Webb in the parish of Winn, solicited and took orders for whisky in less quantities than five gallons; that he and the party giving the order agreed upon the kind of whisky, and the price to be paid therefor, and this order, so taken, was sent to R. P. Webb, in Monroe, where the whisky, as described in the order, was taken from the general stock and prepared for safe shipment. It was then delivered to the public carrier for shipment, to wit, the Southern Express Company, at Monroe, Ouachita parish, Louisiana, consigned to the party who had given the order, and the same was received at Winnfield, Winn parish, Louisiana, by the party making the order, who paid the express charges at the point of delivery, and received his goods. It is also admitted that the order was forwarded to R. P. Webb, to be filled, and was filled by him, or his employes, from his stock of goods in Monroe, as above set forth, and that on a subsequent visit, about two weeks later, defendant Shields, still acting as the agent and solicitor of the said Webb, received from the party who had made the order the price agreed on, in money, and that he delivered the money to Webb, in Monroe, Louisiana."

Upon this statement, the defendant was found guilty as charged. He thereupon moved for a new trial, on the ground that, from the facts agreed on, it appeared that the sale of liquor constituting the alleged offense had been made in the parish of Ouachita, where defendant Webb pays a license. And the motion having been overruled, and the defendant having excepted, he was duly sentenced, and now presents his case to this court by appeal.

The judge a quo reached the conclusion that, upon the facts stated, it should be held, as a matter of law, "that the sale was made and completed in the parish of Winn." We make the following excerpts from his opinion, to wit:

"The facts show that the defendant solicited the sale of the whisky, and he, together with the purchaser, agreed upon the price to be paid therefor; and this, in our opinion, constitutes a complete sale in the parish of Winn, independent of the delivery, in so far as the parties to the contract were concerned.

* * * * * * * *

"As to the further consideration that the sale is not completed until the article (whisky, in this case) is measured out or segregated from the common mass or bulk, we think, after examining the authorities, that this proposition is equally untenable. * * * It is perfectly clear in this case that the purchaser had bought but one quart of whisky, and was not interested in any other whisky, though there had been thousands of gallons of whisky in the warehouse of Webb. He had purchased a quart -- a distinct quantity -- and not a number or quantity of things, subject to be weighed, counted, or measured, as contemplated by the Code. It is contended further that the agent did not make complete sales, but forwarded orders to his principal, in Monroe, for acceptance or rejection. We think this, also, untenable, as the agent not only selected the customer, and at least impliedly vouched for his responsibility, as a guaranty that he would pay for the whisky when received, but agreed upon the object and price of the sale, with a full and complete assent, that obliged his principal to fill the order."

Opinion.

What the defendant, as the agent of Webb, was authorized to do, is a question of fact, upon which the finding of the trial court would be conclusive, since in criminal cases the jurisdiction of this court is confined to questions of law. And what the defendant did is also a question of fact. But whether that which he did amounted to a selling of liquor in the parish of Winn presents the question of law which is to be here considered, since it is the law which determines what constitutes a contract, by what rules such contract is to be interpreted, and what name and effect shall be given to it.

It will be observed that our Brother of the district court does not distinguish between an executory contract for the sale of an object, as yet indeterminate, and a contract whereby the property in a specific thing passes from the owner to the buyer for an agreed price in money, paid or to be paid, nor between the delivery of a specific object, which has been sold, and the "appropriation" of such object, theretofore indeterminate, to an executory contract for the sale of an object answering that description. He does not find as a fact that it was the intention of the parties in the instant case that the sale which the defendant is charged with having made should be perfected, either by the appropriation thereto at Monroe of a particular lot or parcel of whisky, of the kind and in the quantity agreed on, or by the delivery of the same to the buyer at Winnfield; but, the contract being silent in those respects, he concludes, as a matter of law, that the sale was perfected when, in Winnfield, the defendant agreed to have filled, from his codefendant's general stock in Monroe, an order for whisky of the kind, in the quantity, and at the price agreed on, though the particular lot or parcel of whisky to be furnished remained indeterminate. It is, however, conceded that, in order that the sale should have been perfected, there must have been an agreement as to the particular object, and it involves a contradiction in terms to say that an object has been agreed on which remains indeterminate, whether it so remains because it has not come into existence, or because it is confused with and undistinguished from other objects of like character. The common and the civil law are equally clear upon this point, as will be seen by reference to the following excerpts from the text-books and from the Civil Code of this state:

"When the agreement is for the sale of a thing not specified, as of an article to be manufactured, or of a certain quantity of goods, in general, without a specific identification of them, or an 'appropriation' of them to the contract, as it is technically termed, the contract is an executory agreement, and the property does not pass. Until the parties are agreed on the specific, individual goods, the contract can be no more than a contract to supply goods answering a particular description; and, since the vendor would fulfill his part of the contract by furnishing any parcel of goods answering that description, and the purchaser could not object to them if they did answer that description, it is clear that there can be no intention to transfer the property in any particular lot of goods, more than another, until it is ascertained which are the very goods sold. It can make no difference, although the goods are so far ascertained that the parties have agreed that they shall be taken from some specified larger stock. In such case the reason still applies. The parties did not intend to transfer the property in one portion of the stock more than another, and the law, which only gives effect to their intention, does not transfer the property in any individual portion." Benjamin on Sales (4th Ed.) § 352.

"Upon the making of a contract for the sale of a part of a larger mass of goods, * * * or of goods thereafter to be supplied, no particular goods, however, being designated, it is clear that no present title does or can thereby pass. The...