Graves v. Johnson
60 N.E. 383
Mass.
1901
Check Treatment
Holmes, C. J.

This is the second time that this case comes before this court. 156 Mass. 211. It is a suit for the price of intoxicating liquors sold here. At the first trial it was found that they were sold with a view to their being resold by the defendant in Maine against the laws of that State; and on that state of facts it was held that the action would not lie. At the second trial it was found that the plaintiffs’ agent supposed, rightly, that the defendant intended to resell the liquors in Maine unlawfully, but that the plaintiffs and their agent were and were known by the defendant to be indifferent to what he did with the goods, and to have no other motive or purpose than to sell them in Massachusetts in the usual course of business. Seemingly the plaintiffs did not act in aid of the defendant’s intent beyond selling him the goods. The judge refused to rule that the plaintiffs’ knowledge of the defendant’s intent would prevent their recovery, and the case is here again on exceptions.

*58The principles involved are stated and some of the cases are collected in the former decision. All that it is necessary for us to say now is that in our opinion a sale otherwise lawful is not connected with subsequent unlawful conduct by the mere fact that the seller correctly divines the buyer’s unlawful intent, closely enough to make the sale unlawful. It will be observed that the finding puts the plaintiffs’ knowledge of the defendant’s intent no higher than an uncommunicated inference as to what the defendant was likely to do. Of course the defendant was free to change his mind, and there was no communicated desire of the plaintiffs to cooperate with the defendant’s present intent, such as was supposed in the former decision, but on the contrary an understood indifference to everything beyond an ordinary sale in Massachusetts. It may be that, as in the case of attempts, (Commonwealth v.Peaslee, 177 Mass. 267, Commonwealth v. Kennedy, 170 Mass. 18, 22,) the line of proximity will vary somewhat according to the gravity of the evil apprehended, Steele v. Curle, 4 Dana, 381,385-388, Hanauer v. Doane, 12 Wall. 342, 346, Bickel v. Sheets, 24 Ind. 1, 4, and in different courts with regard to the same or similar matters. Compare Hubbard v. Moore, 24 La. An. 591, Michael v. Bacon, 49 Mo. 474, with Pearce v. Brooks, L. R. 1 Ex. 213. But the decisions tend more and more to agree that the connection with the unlawful act in cases like the present is too remote. M’Intyre v. Parks, 3 Met. 207. Sortwell v. Hughes, 1 Curt. C. C. 244, 247. Green v. Collins, 3 Cliff. 494. Hill v. Spear, 50 N. H. 253. Tracy v. Talmage, 4 Kernan, 162. Distilling Co. v. Nutt, 34 Kans. 724, 729. Webber v. Donnelly, 33 Mich. 469. Tuttle v. Holland, 43 Vt. 542. Braunn v. Keally, 146 Penn. St. 519, 524. Wallace v. Lark, 12 So. Car. 576, 578. Rose v. Mitchell, 6 Col. 102. Jameson v. Gregory, 4 Met. (Ky.) 363, 370. Bickel v. Sheets, Hubbard v. Moore, and Michael v. Bacon, ubi supra.

Although a different rule was assumed in Suit v. Woodhall, 113 Mass. 391, it will be seen that it equally was assumed by the instructions given at the trial, and that the exceptions and the point decided in that case concerned only the imputation to the plaintiffs of their agent’s knowledge. M'Intyre v. Parks never has been overruled. Dater v. Earl, 3 Gray, 482. Webster v. Munger, 8 Gray, 584, 587. Adams v. Coulliard, 102 Mass. 167, 172. Milliken v. Pratt, 125 Mass. 374, 376.

*59Exceptions to the admission of letters of the plaintiffs’ agent to them for the purpose of showing what they knew are not argued.

Exceptions overruled.