130 Pa. 138 | Pa. | 1889
Lead Opinion
Opinion,
In the case of Garbracht v. Commonwealth, 96 Pa. 449, which
It is claimed, and it was so held by the court below, that, because the goods were marked C. O. D., the sale was not complete until the delivery was made, and, as that took place in Mercer county, where the defendant’s license was inoperative, he was without license as to such sales, and became subject to the penalty of the criminal law. The argument by which this conclusion was reached was simply that the payment of the price was a condition precedent to the delivery, and hence there was no delivery until payment, and no title passed until delivery. The legal and criminal' inference was, that the sale was made in
Of course, if the seller were himself delivering the goods in parcels upon condition that on delivery of the last parcel the price of the whole should be paid, it would be a fraud on the seller if the purchaser, after getting all the parcels, should refuse to perform the condition upon which he obtained them, and in such circumstances the seller would be entitled to recover the goods. This was the case of Henderson v. Lauck, 21 Pa. 859. The court below, in that case, expressly charged that if the seller relied on the promise of the purchaser to pay, and delivered the goods absolutely, the right to the property was changed, although the conditions were never performed; but if he relied, not on the promise, but on actual payment at the delivery of the last load, he might reclaim the goods if the money was not paid. The case at bar is entirely different. So far as the seller is concerned, he is satisfied to take the responsibility of the carrier for the price, in place of that of the
If, now, we pause to consider the actual' contract relation between the seller and purchaser, where the purchaser orders the goods to be sent to him C. O. D., the matter becomes still more clear. Upon such an order, if it is accepted by the seller, it becomes the duty of the seller to deliver the goods to the carrier, with instruction to the carrier to collect the price at the time of delivery to the purchaser. In such a case it is the duty of the purchaser to receive the goods from the carrier, and, at the time of receiving them, to pay the price to the carrier. This is the whole of the contract, so far as the seller and the purchaser are concerned. It is at once apparent that when the seller has delivered the goods to the carrier, with the instruction to collect the price on delivery to the purchaser, he has performed his whole duty under the contract; he has nothing more to do. If the purchaser fail to perform his part ■of the contract, the seller’s right of action is complete; and he may recover the price of the goods from the purchaser, whether
The duties which lie intermediate between those of the seller and those of the purchaser are those only which pertain to, and are to be performed by, the carrier. These, as we have before seen, are the ordinary duties of carriage and delivery, with the additional duty of receiving the price from the purchaser, and transmitting it to the seller. The only decided case to which we have been referred which presents the effect of an order C. O. E. to a carrier, is Higgins v. Murray, 73 N. Y. 252. There the defendant employed the plaintiff'to manufacture for him a set of circus tents. When they were finished, the plaintiff shipped them to the defendant C. O. D., and they were destroyed by fire on the route. It was held that the defendant, who was the purchaser, should bear the loss; that the plaintiff had a lien on the tents for the value of his labor and materials, and his retaining his lien by shipping them C. O. D. was not inconsistent with, and did not affect his right to enforce the
In Hutchinson on Carriers, at § 389, the writer thus states the position and duty of the carrier: “ The carrier who accepts the goods with such instructions [C. O. D.] undertakes that they shall not be delivered unless the condition of payment be complied with, and becomes the agent of the shipper of the goods to receive such payment. He therefore undertakes, in addition to his duties as carrier, to collect for the consignor the price of his goods.” And again, in § 390: “ When the goods are so
Thus far we have regarded the transaction between the parties in its aspect as a civil contract only; but, when viewed in its aspect as the source of a criminal prosecution, the transaction becomes much more clear of doubt. It is manifest, that when the purchaser ordered the goods to be sent to him C. O. D., he constituted the carrier his agent, both to receive the goods from the seller, and to transmit the price to the seller. When, therefore, the goods were delivered to the carrier at Pittsburgh for the purpose of transportation, the duty of the seller was performed, as we have already seen, so far as he and the purchaser were concerned, and as between them the transaction was complete. The duty of transportation devolved upon the carrier, and for this he was, in one' sense, the agent of the
The judgment of the Court of Quarter Sessions is reversed, and the defendant is discharged from his recognizance upon this indictment.
Dissenting Opinion
Opinion dissenting,
At the license term of the Court of Quarter Sessions for the county of Mercer in 1888, all applications from the borough of Mercer were refused. Within a few days after such refusal, the defendant, who holds a license authorizing sales by the quart and larger measure in the city of Pittsburgh, went to Mercer, and gave public notice through the local papers, and by circulars distributed from house to house, that he would supply the' people of that region with liquors by the quart and upwards by express, C. O. D. A trade sprang up at once, which soon reached such dimensions as to attract public notice. The constable of Mercer returned the defendant as engaged in the sale of liquors in his borough without a license. He was indicted by the grand jury, tried, convicted, and sentenced. He comes now into this court asking to be relieved from the conviction and sentence, alleging that his sales made in Mercer, C. O. D., were lawfully made under his license in Allegheny county, and that the action of the authorities of Mercer county was an unlawful interference with a legitimate business enterprise. If this is true, whatever we may think of his business methods, we ought to relieve him from an improper conviction. If it is not true, the circumstances under which these sales were made, and the evident purpose to disregard public sentiment and the action of the court upon the subject of licenses, are reasons why the sentence should be rigidly enforced. Let us inquire, therefore, what the license granted by the courts of Allegheny county authorized him to do.
His application was for license to sell by the quart and larger measure at a place named by him in the city of Pittsburgh.
This will be rendered more apparent if we glance at the provisions of the license law. It is well settled that a license is a personal privilege, granted in part, at least, in vieiv of the 'fitness of the applicant to be intrusted with it. He is required to be a citizen. He must be a man of temperate habits, that his business may have sober and intelligent supervision. He must be a man of good moral character, affording thereby assurance that his sales shall be conducted with good faith towards the law and the public. The possession of these qualifications must be certified to by not less than twelve of his neighbors. He must give notice of his application, so that the fact may be known, and an opportunity offered for any one to object who may desire to do so. He must give a bond in the ' sum of |2,000, with two sufficient sureties, conditioned that he will faithfully observe all the requirements of the liquor laws. In addition to these personal qualifications, he must have a place of business. This must be rated and returned in the same, manner that merchants are rated and returned for mercantile taxes; and, when his license is granted, it must be framed under glass, and conspicuously displayed in his place of business, before he begins to make sales. The purpose of these 1 provisions is evident. It is to grant licenses only to suitable persons, to conduct business at suitable places, and to
Let us now inquire what he did in Mercer county. He went there, and offered to supply the people with drink, not by opening a saloon, and delivering it over the counter or bar, but by delivering at their houses, shops, or stores by an agent to whom payment could be made, and by whom the bottles or package would be delivered. In consequence, he received orders from individuals in Mercer, put up the bottle or bottles in a package, marked it “ glass ” or “ medicine,” and sent it with the bill by the carrier, marked “ C. O. D.” The express company carried the package, collected the money, if it was paid promptly by the consignee, and delivered the package. What is the legal effect of such a sale ? If the defendant had taken the bottles to Mercer in person, and delivered them on receipt of the price, no one could be found to doubt that his sale was made where he took his money and delivered his goods. If he had sent a clerk from his store to do the business for him in the same manner, the character of the transaction •would be equally free from doubt. Instead of sending his clerk, he employed the carrier to collect the bill and deliver the package for him; and the carrier became his agent for collection and delivery as truly as his clerk would have been. The duty of the carrier, as such, ended with the transportation of the package. Its undertaking to collect the price and make delivery of the article was outside the functions of a carrier, and made it the agent or factor of the consignor for that purpose. The transaction, taken together, was, both on principle and authority, a sale and delivery at Mercer, and not at Pittsburgh.
The duty of a common carrier is to carry for all who come : Angelí on Carriers, § 67; Hutchinson on Carriers, §§ 47, 48;
In our own state the precise question does not seem to have arisen, but there are several cases in which the principle has been clearly recognized. In Harrington v. McShane, 2 W. 443, the owners of a steamboat received flour from the plaintiff to carry to Louisville, and to sell, and return the proceeds. The flour was transported to Louisville, sold, and the proceeds, together with all the papers and effects belonging to the boat, were burned during the return voyage in a fire that consumed the boat. An action was brought to recover the proceeds of the flour. This court held that as to the sale of the flour the defendants were the agents of the consignors; but that as to the transportation, both of the flour and the money, they were carriers, and they were accordingly liable for the loss of the money. In Taylor v. Wells, 3 W. 65, the question of the carrier’s liability was raised on a somewhat different state of facts.
Upon this brief review of authorities, we conclude that the sales made by the defendant were made at Mercer when he delivered the liquor sold, and not at his store in Pittsburgh. It remains to be considered whether there is any reason why the defendant should be relieved from the punishment provided
But, if an evil intent was necessary to justify a conviction, the evidence was abundant to submit to the jury on that question. It showed the defendant leaving his place of business, and the county in which it was located, and seeking an opportunity to make sales and deliver his goods in the county of Mercer. It showed that his visit followed at once upon the refusal by the court of Mercer county to grant licenses. It showed that, through the newspapers and by circulars left at every door in the borough of Mercer, he invited orders, and promised to fill them, delivering the drink to the consumer at his house or shop or store on payment of the price and the costs of transportation. It showed that to avoid notice, and divert attention from the character and extent of this traffic, he caused the packages, in which the bottle or bottles sent to his customers were wrapped, to be marked “ medicine ” or “ glass.” From these facts the jury would have been justified in finding that he knew that his sales were not authorized by his Allegheny countv license, and that he intended to violate