12 Ill. App. 200 | Ill. App. Ct. | 1883
The defendants were engaged in the retail liquor business, having a license to keep a dram shop. This license conferred no authority upon them to sell such liquor to minors. Every sale made by them over their bar in the general course of their business may or may not be legal according to the character of the purchaser.
Their license legalized sales of liquor to some persons but not to all, and the law imposed upon them the duty of determining for themselves at their peril, that every one purchasing liquor of them belonged to that class of persons to whom they could lawfully sell. McCutcheon v. The People, 69 Ill. 604.
They must in every instance judge correctly or liability attaches. This danger of incurring legal liability on the part of the liquor dealer for illegal sales, made through mistake as to the competency of the party to buy, and of his right to sell, even when actuated by the best intentions and exercising the soundest judgment and highest diligence not to be deceived, is an incident of the business in which he freely engages and a burden which he voluntarily assumes.
The appellants being aware that the nature of their business required the exercise of great care and diligence to avoid liability through a mistaken judgment as to the character of the purchasers of liquor of them, employed Clark to conduct their business under their license and invested him with the authority to sell liquor to all persons calling for it to the same extent as they lawfully might do. Their instructions to him not to sell liquor to minors were simply directions to him to obey the law in that regard.
They forbade him to sell liquor to minors. So did the law. His duty was no more clearly defined nor made any more imperative by such instructions or commands.
Under his employment to sell liquor over their counter in the general course of their trade, he was placed in a position by them where he was necessarily called upon to exercise a discretion in determining the legality of every proposed sale, and it must be held that in passing upon such a question and in the determination of the fact according to his best judgment he was acting within the authority conferred upon him and within the scope of his employment. As was said in Mc-Cutcheon’s case, supra, “ the agent had no license to sell to any one, and it is only lawful for him to do so in the name and by the authority of his principal, and the presumption must be deemed conclusive, the agent or servant acted within the scope of his authority in making the sale.”
It was not proposed to prove that the instructions given to Clark were not to sell liquor to Frank Hatchett, as he was a minor, thereby taking from the agent all discretion in the premises, nor to show that Clark had sold to him knowing him to be a minor, and we do not express anj? opinion upon the effect such facts would produce, did they appear in the case.
As the appellee only claimed the minimum penalty under the ordinance, the exclusion of the proposed evidence worked no injury to the appellants.
We see no error calling for a reversal of the judgment, and the order will he
Judgment affirmed.