1. Liquors:Executory mile law. The question in this case is whether the sale of a half gallon of whiskey,for which the appellant is prosecuted, was made at Newport, in Jackson county, or at Brinkley, in Monroe county. The prosecution is for a sale at the latter place, where the three mile law was in force; and, if the sale was made there, the conviction is right. But an executory con-to sell is not punishable under the three mile law. Carl & Tobey v. State, 43 Ark., 353; Berger v. State, 50 Ib., 20. “ I cannot construe a penal statute which punishes a sale,” says Judge Curtis in Sortwell v. Hughes, 1 Curtis C. C., 244, “ so broadly as to hold that it applies to a mere executory contract for a sale. In my judgment it extends only to executed sales by which the property passes from the vendor to the vendee. ’ ’ Such, in effect, is the judgment of this court in the cases above cited, and in Parsons Oil Co. v. Boyett, 44 Ark., 230. See, too, Boothby v. Plaisted, 51 N. H., 436; Sarbecker v. State, 65 Wis., 171; Garbracht v. Com., 96 Penn. St., 449; Frank v. Hoey, 128 Mass., 263.
2. Same. The quantity and the price were the only particulars agreed upon by the parties at Brinkley. It remained for the vendor, after his return to Newport, to fix upon the specific liquor to answer the order; to separate it from a larger quantity, and forward it in accordance with the agreement. There is no room to presume that it was the intention of the parties to the contract of sale that the buyer of the half gallon of whiskey should become a joint owner of the entire stock held by the firm of which the appellant was a member at Newport. The intention was only to confer several title to a half gallon thereafter to be appropriated to the contract of sale by the seller. Any whiskey in stock would answer the contract, and until it was actually appropriated to it, the title remained in the firm and the sale was incomplete. Cases supra. Hare on Contracts, p. 415; Benj. Sales, secs. 352 et seq. and notes; Upham v. Dodd, 24 Ark., 5451 Beller v. Block, 19 Ib., 566; Hives v. Hurff, 17 Am. Law Reg., 11 and n. But the appropriation of the liquor to the contract was made at Newport, and as there was not a complete sale until that was done, the sale was made at that place and not in ,the prohibited district.
3. Sale of goods: Delivery to carrier. The circuit judge found specially that the express company to which the whiskey was delivered was the agent of the seller, and that as such it delivered the liquor to the purchaser in Brinkley in pursuance of the contract made by the parties at that place. If such an inference were warranted by the agreed statement of facts upon which the cause was tried, the judgment would be sustained by the decisions in Berger’s and Yowell’s cases reported in the 5°th and 41st volumes of the Arkansas Reports. But delivery to a rier is delivery to the consignee when made in pursuance of an order or agreement to ship. Carl & Tobey v. State, Berger v. State, and other cases supra. Burton v. Baird, 44 Ark., 556. We see no circumstance in this case, as there was in Berger’s case stip. from which to draw the conclusion of a different intention. The delivery was therefore at Newport.
Reverse the judgment and remand the cause.
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