Turner v. Schmidt Brewing Co.

• Decision Date: 28 December 1936
• Docket Number: No. 48.,48.
• Parties: TURNER v. SCHMIDT BREWING CO.
• Court: Michigan Supreme Court

278 Mich. 464

270 N.W. 750

TURNER

v.SCHMIDT BREWING CO.

No. 48.

Supreme Court of Michigan.

Dec. 28, 1936.

Action by Edison E. Turner, doing business under the name and style of the E. E. Turner Construction Company, against the Schmidt Brewing Company. Judgment for plaintiff, and defendant appeals.

Reversed.Appeal from Circuit Court, Wayne County; Robert M. Toms, judge.

Argued before the Entire Bench, except POTTER, J.

Harry H. Mead, of Detroit, for appellant.

Ralph B. Clark, of Detroit, for appellee.

NORTH, Chief Justice.

This suit at law in which plaintiff seeks to recover upwards of $2,000 from the defendant brewing company is for work, labor, and materials furnished by plaintiff under alleged contracts between him and defendant in altering and remodeling a number of beer gardens which were purchasing beer from the defendant company. In each instance the brewing company was to be reimbursed by the proprietor of the place for the amount expended on the respective jobs. Plaintiff was solicited to do the work by salesmen of the defendant brewing company; and for certain jobs of this character done by plaintiff prior to those involved in this suit the respective transactions were taken up with the president and executive manager of the brewing company in plaintiff's presence. As to each of these earlier jobs the president of the defendant company approved the transaction and plaintiff was subsequently paid therefor by defendant. But on the later jobs involved in the instant suit, plaintiff did not have the personal authorization of defendant's president and executive manager; instead, plaintiff relied on the assurance of defendant's salesmen, Knapp or Randall, that plaintiff's offer to do the work was acceptable. Defendant refused to pay for these later jobs. In plaintiff's suit, tried before the court without a jury, he had judgment, and the defendant has appealed.

Among other defenses urged, it is asseted in behalf of defendant that the work and materials for which plaintiff seeks recovery were furnished by plaintiff knowingly for the accomplishment of a purpose in violation of law and, therefore, plaintiff cannot recover. Act No. 8, Pub. Acts Extra Session 1933, contains the following provisions:

‘Sec. 30. Aid to vendor. No manufacturer, warehouseman or wholesaler shall aid or assist any other vendor by gift or loan of money or property of any description or other valuable thing, or by the giving of premiums or rebates, and it shall be unlawful for any vendor to accept the same.

‘Sec. 31. Interest in business of vendor. No manufacturer, warehouseman or wholesaler shall have any financial interest, directly or indirectly, in the establishment, maintenance, operation or promotion of the business of any other vendor. No manufacturer, warehouseman or wholesaler, nor any stockholder thereof shall have any interest by ownership in fee, leasehold, mortgage or otherwise, directly or indirectly, in the establishment, maintenance, operation or promotion of the business of any other vendor. * * *

‘Sec. 50. Penalties. Any person, other than persons required to be licensed under this act, who shall violate any of the provisions of this act shall be guilty of a misdemeanor.

‘Any licensee who shall violate any of the provisions of this act, or any rule or regulation of the commission promulgated hereunder, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than six months or by a fine of not more than five hundred dollars, or both, in the discretion of the court.’

Under the express terms of the act, in part above quoted, the brewing company is both a ‘wholesaler’ and a ‘vendor,’ and the proprietors of the beer gardens in which the work was done were also vendors. Each of them is required to be licensed under the act. For the purpose of decision herein it may be assumed, as plaintiff asserts, that he was employed by the defendant to do the work, or at least that performance of his services were ratified by the president and executive manager of the defendant company. But even so, review of this record discloses that plaintiff knew of the character of the services he was rendering, and the circumstances under which he furnished the work and material. He was bound to know that such transactions were in violation of the above-quoted statute. In other words, it appears that plaintiff knew he was performing service in violation of law and for which violation a penalty was imposed. That plaintiff did have full knowledge of the nature of these dealings to which he was a party almost conclusively appears from his declaration wherein he claims defendant was indebted to him in the sum of $1,000 for taking part in the consummation or attempted consummation of just such deals. We quote from plaintiff's declaration: ‘That the time expended by plaintiff in going with defendant's general agents, Randall and Knapp, at the suggestion of George Schmidt, president of the Schmidt Brewing Company, to several beer gardens where Schmidt Brewing Company sold beer, so that plaintiff might be present when there was submitted to the several beer garden proprietors a proposition that if beer were purchased from the Schmidt Brewing Company, the Schmidt Brewing Company would cause to be accomplished any improvements in the premises of said beer gardens which the proprietors thereof might need, and cause same to be constructed by plaintiff and for which the Schmidt Brewing Company would pay plaintiff, the Schmidt Brewing Company never then intending to make such improvements but therein stalling plaintiff and stalling the beer garden proprietors so that during the interval Schmidt beer might be sold through the several beer gardens where such work was promised. For which time plaintiff claims damages in the sum of one thousand ($1000) dollars.’

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