Westheimer v. Weisman

• Decision Date: 08 July 1899
• Docket Number: 11307
• Citation: 60 Kan. 753,57 P. 969
• Parties: FERDINAND WESTHEIMER et al. v. J. J. WEISMAN
• Court: Kansas Supreme Court

57 P. 969

60 Kan. 753

FERDINAND WESTHEIMER et al. v. J. J. WEISMAN

No. 11307

Supreme Court of Kansas

July 8, 1899

Decided July, 1899.

Error from court of appeals, northern department; JOHN H. MAHAN ABIJAH WELLS, and SAM'L W. MCELROY, judges.

Judgment reversed and new trial ordered.

John H Atwood, and W. W. Hooper, for plaintiffs in error.

Jno. T O'Keefe, for defendant in error.

OPINION

SMITH, J.:

Ferdinand Westheimer & Sons conducted a wholesale liquor business at St. Joseph, in the state of Missouri, and were authorized under the laws of that state to sell intoxicating liquors. In 1893 their agent and traveling salesman, who was a resident of Missouri, came to Kansas and solicited an order from the defendant in error at Leavenworth for a barrel of whisky, subject, however; to the approval of the plaintiffs in error at their place of business in Missouri. After the receipt of the order the latter approved the same, selected a barrel of whisky from their stock, delivered it on board cars at St. Joseph, Mo., consigned and addressed to the defendant at Leavenworth. The same was carried by rail to the latter place, where the defendant paid the freight, and the liquor was delivered to him by the common carrier. The defendant refused to pay for the whisky, and an action was brought in the court below to recover the price thereof. The evidence introduced by the defendant tended to prove that he purchased the liquor for the purpose of reselling it unlawfully in Kansas. Upon these facts the trial court gave the jury the following instruction:

"If the jury believe from the evidence that the defendant Weisman was engaged at Leavenworth, Kan., in the unlawful sale of intoxicating liquors at the time of the transaction with the plaintiffs; that the plaintiffs reside and conduct a wholesale liquor business at St. Joseph, Mo., being authorized under the laws of Missouri so to do; that the plaintiffs sent their agent, who also resided in Missouri, into Kansas to solicit orders for the sale of liquors; that the agent called upon the defendant at Leavenworth, Kan., and secured from him an order for a barrel of whisky at the price sued for, subject to the approval of the plaintiffs at St. Joseph, who thereafter approved the same in Missouri, selected the barrel of whisky from their stock there, and delivered it on board the cars at St. Joseph, Mo., addressed to the defendant at Leavenworth, and the railroad company afterward transported the same to defendant at Leavenworth, Kan., and he paid the freight charges to the railroad company, in such case you should find for the defendant."

There was a verdict and judgment for the defendant. Plaintiffs below prosecuted proceedings in error to the court of appeals, where the judgment was affirmed. (8 Kan.App. 75, 54 P. 332.)

As a part of the instructions, the trial court read to the jury section 32, chapter 101, General Statutes of 1897 (Gen. Stat. 1889, P 2550), which reads:

"Any person who shall take or receive any order for intoxicating liquors from any person in this state, other than a person authorized to sell the same, as in this act provided, or any person who shall directly or indirectly contract for the sale of intoxicating liquors with any person in this state, other than a person authorized to sell the same, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished therefor as provided in this act for selling intoxicating liquors."

The plaintiffs in error devote almost their entire brief to a discussion of the...