Whitlock v. Workman & Co.

• Decision Date: 11 December 1863
• Citation: 15 Iowa 351
• Court: Iowa Supreme Court
• Parties: WHITLOCK v. WORKMAN & Co

15 Iowa 351

WHITLOCK v. WORKMAN & Co

Supreme Court of Iowa, Des Moines

December 11, 1863

Appeal from Johnson District Court.

IN November, 1858, the defendants in this cause ordered and purchased of the plaintiffs, at the city of New York, a bill of goods consisting of intoxicating liquors and other merchandise, amounting to $ 4,444.24, including insurance and some items for cartage, on which was paid at the time, cash $ 425.11. These goods were shipped by plaintiffs to defendants at Iowa City, land duly received about the 1st of December 1858, by defendants, who paid the charges of transportation. By the terms of the sale, the defendants were to give notes for the balance due on the account, after paying $ 425.11, as aforesaid, and said notes were sent to Iowa City, Iowa, for signature, but were not signed and returned to the plaintiffs for some reason not disclosed in the evidence. In July thereafter, the plaintiffs sent out their agent, a Mr Sanderson, to settle the account. To him $ 500 cash was paid and several notes on time were given for the balance. Upon these notes the present suit is brought. After denying the allegations of the petition, the defendants plead several special answers in bar to plaintiffs' recovery the substance of which are that the notes were executed in part for intoxicating liquors ; that said liquors were sold by plaintiffs with intent to enable the defendants to violate the provisions of an act entitled an act for the suppression of intemperance, approved January 22d, 1855; and further, that said notes having been executed in this State, are void. At the trial of the cause, the issues were found in favor of defendants, and a motion for a new trial being overruled, the plaintiffs appeal.

Reversed.

Clarke & Davis for the appellant.

I. The 15th section of the act for the suppression of intemperance, approved January 22d, 1855, does not declare the contract void, but deprives either party of a remedy to enforce it. The Legislature had the power to make this enactment. Orcutt v. Nelson, 1 Grey 536.

II. This sale was completed in the State of New York. The delivery to the common carrier, the railroad company, was a delivery to the defendants. 1 Pars. Cont., 440; Hind v. Whitehouse, 7 East. 261 ; Story on Sales, §§ 288, 289 ; Smith on Cont., 431 ; Orcutt v. Nelson (supra); Waldron v. Romaine, 22 N. Y. (8 Smith), 368.

III. This being established, it is necessary for the defendants to establish the facts :

1. That the liquors were sold in New York in violation of the laws of said State, or

2. That they were sold, with the intent on the part of the plaintiffs, to enable the defendant to violate the laws of this State for the suppression of intemperance.

The sale was not contrary to the laws of the State of New York, and the validity of the contract being determined by the law of the place where it is made, it is not void. (Carnegie v. Morrison, 2 Met. 397; Dater v. Earl, 69 Mass. 482, 3 Gray 482 ; Davis v. Bronson, 6 Iowa 410 ; 2 Pars. Cont., 82.) To render it invalid under the law of this State for the suppression of intemperance, it must be made to appear :

1. That the vendor had knowledge of the existence of the law. Ignorance of a foreign law is ignorance of fact and not of law, and the laws of another State are foreign laws. (Haven v. Foster, 9 Pick. 111 ; Bank of Chillicothe v. Dodge, 8 Barb. 233; Norton v. Marden, 3 Shep. 45; 2 Stark. 568 ; Bean v. Briggs & Felthouser, 4 Iowa 464 ; Ed. Bills, 348.)

2. It must be proved that the liquors were sold with an unlawful and wrongful intent. Proof of knowledge of the existence of the law is not sufficient to show the wrongful intent. (Kriep v. Soligman, 8 Barb. 449; Dater v. Earl, supra, and Orcutt v. Nelson, supra ; McIntyre v. Parks, 3 Met. 207 ; Story Confl. L., § 253.)

Rush Clark and Fairall for the appellee.

Hon. CALEB BALDWIN, Chief Justice, Hon. GEORGE G. WRIGHT, Judge, Hon. RALPH P. LOWE, Judge, from December 7 to December 24, 1863. Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge, from January 1, 1864, to the conclusion of the Term. ^[*]

OPINION

LOWE, J.

On the trial, exceptions were taken in the matter of refusing to give, and giving, certain instructions to the jury, and the overruling the motion for a new trial. The ground of this motion was, that the verdict is against the evidence and the law of the case. The testimony, as a whole, admits of, but one construction in respect to the place where the contract was made, and that is, that it was entered into and consummated in the city of New York. The circumstance that some seven months or more after the sale and delivery of these goods, notes were signed in this State as evidence of the indebtedness, does not alter the case or change the place of the contract. The delivery of the goods to the transporting agents in the city of New York, was a delivery in contemplation of law to the defendants. If this is not so, why did they pay the cartage, the insurance for the safe transportation, and all the other charges of affreightment. (1 Pars. Cont., 440-443 ; Story Sales, §§ 288, 289 ; Story Cont, §§ 599, 800-805 ; Addison Cont., 242, 243.)

But it is claimed, as a matter of defense, that plaintiffs sold these liquors to defendants with the intent to enable them to violate the law of this State passed for the suppression of intemperance. In the case of Dalter v. Laue &amp Guye, 13 Iowa 538, we held, substantially, that such a defense was available in law against a foreign vendor of intoxicating liquors; but that the allegation of such a purpose, on the part of the vendor, at the time of sale, must be supported by some evidence tending to establish its truth. The evidence in support of this allegation in the case at bar is to be found, if at all, in the testimony of defendant, Workman, and his partner, Fairall, who were the only witnesses that testified for the defense; and it is somewhat remarkable, in view of the character of the verdict, that they state no...