| Ky. Ct. App. | Oct 21, 1897
delivebed the opinion of the court.
“1st. That the defendant, J. W. James, is and was, on the 10th day of January, 1897, a licensed distiller, doing business in the town of Crab Orchard, and the county of Lincoln, in Kentucky, and as such duly authorized to sell in said county spirituous liquors in quantities not less than one quart.
“2d. That the said defendant had, prior to the 10th day ot January, 1897, distributed in the county of Rockcastle orders in blank, printed on postal cards, which were addressed to himself at Crab Orchard, in Lincoln county, as aforesaid, for spirituous liquors.
“3d. That on the 10th day of January, 1897, J. J. Cook filled up and signed one of said blank orders, addressed as aforesaid to defendant at Crab Orchard, for one gallon of whisky; that said order was by said Cook mailed at Mt. Vernon to defendant at Crab Orchard for one gallon of whisky; that said order was by said Cook mailed at Mt. Vernon to defendant at Crab Orchard, and there received by the defendant; that said order directed defendant to ship the said Cook one gallon of whisky to Mt. Vernon, in Rock-castle county, by the Adams Express Co., C. O. D., meaning that the price thereof, which was stated in the order, was to be collected by the said company from said Cook upon delivering to him and at the place of delivery; that in compliance with said order the defendant delivered one gallon
“4th. This was all that was done by defendant in respect to the sale of spirituous liquors as charged in the indictment, No. 162, on this court docket.”
The sole question involved is whether the sale was made in the county of Rockcastle or in Lincoln county. This precise question was determined in Commonwealth v. Russell, 11 Ky. Law Rep., 576 (Superior Court, 1889), and it was held that where whisky ordered by letter was shipped from one county to another by express, C. O. D., the sale took place in the county in which the whisky was delivered to the carrier, and was not a violation of a prohibitory liquor law in force in the county to which it was shipped, citing 2 Kent, 492; Crawford v. Smith, 7 Dana, 60; Sweeney v. Owsley, 14 B. M., 332; Duncan v. Lewis, 1 Duvall, 184. The same conclusions are reached by the Superior Court in a number of other similar cases.
Professor Benjamin, in his recent “Principles of Sales/' page 86, states the rule thus: “Where goods are ordered and shipped C. O. D. (collect on delivery), the carrier is said to be the agent of the buyer to receive the goods from the seller, and the agent of the seller to collect the price from
A different rule prevails in several other States as well as in the Federal courts, but the rule laid down by Benjamip is undoubtedly the law in this State, whatever it may be in some of the other States. The sale in this case was, therefore, in Lincoln and not in Rockcastle county. This case is decided without reference to the effect the case of Stamper v. Commonwealth, ante, may have on the special local act involved here.
The judgment is reversed, with directions to dismiss the prosecution.