Wischhusen v. Am. Medicinal Spirits Co., Inc., No. 51.

• Court: Court of Appeals of Maryland
• Writing for the Court: PARKE, J.
• Citation: 163 A. 685
• Parties: WISCHHUSEN v. AMERICAN MEDICINAL SPIRITS CO., Inc.
• Decision Date: 11 January 1933
• Docket Number: No. 51.

163 A. 685

WISCHHUSEN
v.
AMERICAN MEDICINAL SPIRITS CO., Inc.

No. 51.

Court of Appeals of Maryland.

Jan. 11, 1933.

163 A. 685

Appeal from Baltimore Court of Common Pleas; Eugene O'Dunne, Judge.

Action by John Wischhusen against the American Medicinal Spirits Company, Inc. Judgment for defendant, and plaintiff appeals.

Affirmed.

Argued before BOND, C. J., and URNER, ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

Wirt A. Duvall, Jr., and August A. Denhard, both of Baltimore, for appellant.

Raphael Walter, of Baltimore (Sykes, Nyburg, Goldman & Walter, of Baltimore, on the brief), for appellee.

PARKE, J.

The plaintiff sued the defendant on the common counts and on a seventh special count in contract, which alleged that on August 13, 1929, the plaintiff, an expert in the manufacture of whisky, was employed by the defendant, a corporation engaged in the business of distilling whisky, for the period of one year, at a salary of $100 a week, to have the exclusive management and control of all operations at a particular distillery in the production of whisky by the defendant until the whisky was delivered to the cistern room, and meanwhile neither party was to engage in any violation of any law; that on August 22, 1929, the plaintiff began his duties under the contract and continued uninterruptedly in the service of the defendant, and was regularly paid the weekly sum of $100, until September 12, 1929, when, without cause, the defendant dismissed the plaintiff from said service and thereafter refused to permit him to perform the contract, although the plaintiff was ever ready and willing so to perform.

The defense to this action on the contract was set up in two amended pleas to the seventh count of the declaration. A demurrer was interposed to these pleas, and the demurrer was overruled, and, on a refusal of the plaintiff to plead further, a judgment was entered in favor of the defendant, and this appeal taken.

The pleas are in the form of a confession and avoidance, and differ only in unessential particulars, and each presents the same defense. The contract is admitted, but the plea alleges these facts in avoidance of that admission: The defendant was a distiller of intoxicants, and his business was unlawful except when engaged in distilling for one of the few permitted purposes and then under the express authorization and supervision of the government of the United States. The distillation could not proceed until the distiller had filed a prescribed application for the issuance of a permit to distill and a governmental permit had been granted in accordance with the federal statutes and regulations on the subject. The defendant had filed its application in the form required, but the permit had not been issued at the time the contract of employment was made by the plaintiff and defendant. The plaintiff knew these recited facts to be true when the parties agreed on August 13, 1929. The government notified

163 A. 686

the defendant, on September 11, 1929, that it had learned that the plaintiff was employed by the defendant in the capacity of a distiller, and that the plaintiff was "unsatisfactory to the Government for the reason it is believed he is not trustworthy or competent," and therefore the application of the defendant for permission to distill could not be approved unless the position held by the plaintiff was "filled by one who is entitled to the full confidence of the Government." On the receipt of this notice, the defendant informed the plaintiff of the situation, paid him in full to the date of discharge, and declared the contract between them terminated because of the impossibility of further performance by the plaintiff.

The promise of the plaintiff was to render, at a specified place, during the whole period of the contract, personal service in a special art in which he was proficient. The service, however, was in connection with the production of an article which could not be manufactured except by the express permission of the government of the United States under prescribed statutory conditions and authorized regulations. The difficulty of confining the manufactured product to its limited lawful use, and the comparative ease and great gain in its illicit diversion, made it necessary for the government to determine who could engage in the business and to prevent the employment of undesirable workmen of whatever grade. So the federal statute made it an imperative condition precedent to the manufacture of whisky that a permit be granted, whose issuance was in the reasonable discretion of the Commissioner of Internal Revenue. The Commissioner was empowered to prescribe the form of the applications for permits and the facts to be set forth, and his action in refusing to grant a permit to the applicant was subject to review. McCormick & Co. v. Brown, 286 U. S. 131, 145, 52 S. Ct. 522, 76 L. Ed. 1017, 1026; United States Code Annotated, title 27, §§ 5, 12, 13, 14, 16, 46, 72, 83, 85 (note, the Prohibition Reorganization Act of 1930 was not in force when the questions on this record arose, 27 USCA § 101 et seq.); Corneli v. Moore (D. C.) 268 P. 993; Id., 257 U. S. 491, 42 S. Ct. 176, 66 L. Ed. 332; Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046, affirming (C. C. A.) 3 F.(2d) 936; Gnerich v. Rutter, 265 U. S. 388, 44 S. Ct. 532, 68 L. Ed. 1068;...