Finch v. Mansfield

| Mass. | Sep 15, 1867

Hoar, J.

If the consideration of the notes on which _ the plaintiffs sued was intoxicating liquors sold in this commonwealth ih violation of law, or sold for the purpose, known to the seller, of being again sold therein contrary to law, the defence must prevail.

The first question is, whether the sale was made in Massachusetts or in Connecticut. The plaintiffs, who were traders in Connecticut, might lawfully sell the liquors there, unless they knew that they were intended to be used in violation of the laws of Massachusetts. If the plaintiffs’ agent had no authority to sell for them, but only to receive and transmit orders to them at New Haven, for liquors to be sent by railroad to the defendant in Massachusetts, the plaintiffs completing the contract by delivering them on the railroad in Connecticut, and the defendant agreeing to pay the freight, it is very plain that this would not constitute a sale in Massachusetts. The only agreement to sell, or act of sale, would be at New Haven. The first existence of a contract would be when the plaintiffs, at New Haven, assented to the defendant’s proposal, transmitted through the agent; and the sale would be completed when the liquors were delivered at the railroad, directed to the defendant. The test would be whether the defendant, by anything transacted between him and the agent in Massachusetts, acquired any right against the plaintiffs. The agreement as to the price would not be decisive, unless the agent agreed, and had authority to agree, that the liquors should be supplied, so as to bind his principals.

The evidence upon this question was proper for the consideration of the jury, and was submitted to them with instructions entirely correct. As it is reported, it does not directly prove a sale at Deerfield, or an offer on behalf of the plaintiffs to which the defendant assented there. Whatever evidence there is of a sale is matter of inference and argument only, and not of undisputed fact. It was therefore proper that the jury, and not the court enould pass upon it. Merchant v. Chapman, 2 Allen, 228

Upon the other question presented by the bill of exceptions, the ruling at the trial was equally correct. The presumption that a man knows at one time what he had previously known is a presumption of fact, and not of law. The plaintiffs, by themselves or their agent, must have been proved to know that the defendant intended the liquors for sale unlawfully in Massachusetts, in order to make the contract illegal, if it was made in Connecticut. That the agent had had some reason to know that the defendant could not lawfully sell them was not suffi cient. It must be proved that he did know it. There is no presumption of law that he did; although the fact that he once knew it, and that the law continued the same, was strong evidence against him, and was submitted to the jury as evidence for their consideration.

The instruction asked by the defendant seemed to assume that the sale was made in Massachusetts. If that had been so, of course within the state all persons are required and presumed to know the criminal law, and act at their peril in violating it. But no such presumption affects persons out of the state; nor persons within the state who do nothing in it contrary to law.

Exceptions overruled.