Westheimer v. Weisman

• Decision Date: 01 September 1898
• Docket Number: 370. [*]
• Citation: 54 P. 332,8 Kan.App. 75
• Parties: FERDINAND WESTHEIMER et al. v. J. J. WEISMAN
• Court: Kansas Court of Appeals

54 P. 332

8 Kan.App. 75

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

No. 370. ^[*]

Court of Appeals of Kansas, Northern Department

September 1, 1898

Opinion Filed September 17, 1898.

Error from Leavenworth district court; ROBERT CROZIER, judge pro tem. Affirmed.

Judgment affirmed.

Baker Hook & Atwood, and Wm. W. Hooper, for plaintiffs in error.

John T O'Keefe, for defendant in error.

OPINION

MCELROY, J.:

The plaintiffs in error, Ferdinand Westheimer & Sons, conduct a wholesale liquor business at St. Joseph, Mo. In 1893 an agent of plaintiffs in error, who resides in Missouri, came to Leavenworth, Kan., called on the defendant, solicited and secured an order from the defendant for a barrel of whisky, subject, however, to the approval of plaintiffs in error at their place of business. Thereafter the plaintiffs in error approved the order, selected the barrel of whisky from their stock, and delivered it on board the cars at St. Joseph, consigned and addressed to the defendant at Leavenworth. The railway company carried the whisky to Leavenworth, where it was delivered to the defendant, who paid the freight thereon. When the account matured the defendant refused to pay the bill, and this action was brought to recover the purchase-price of the liquor. A trial was had, which resulted in a verdict for the defendant. A motion for a new trial was filed and overruled, and the plaintiffs in error present the case to this court for review, and allege that the trial court erred: (1) In instructing the jury in the manner it did at the trial; (2) in overruling the plaintiffs' motion for a new trial; (3) in applying paragraph 2550 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 101, § 32) to the facts in this case. They contend that paragraph 2550 is not valid or constitutional as applied to non-resident agents of non-resident firms -- that is to say, those who reside and do business outside the state of Kansas, and who solicit orders therein for the sale of intoxicating liquors -- for the reason that it would be an infringement and an encroachment on the right to regulate interstate commerce, which is within the exclusive jurisdiction of congress, and that the trial court erred in holding otherwise.

The record, the assignments of error and the instruction of which complaint is made present but one question, and that is on the validity of paragraph 2550 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 101, § 32). The instruction of which complaint is made reads:

"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 the 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 the defendant at Leavenworth, Kan., and he paid the freight charges to the railroad company, in such case you should find...