132 Ala. 235 | Ala. | 1902
Lead Opinion
— The complaint originally contained one count for goods, wares and merchandise sold by plaintiff to defendant. 'The action was begun against J. A. McMinn, but after it was instituted, the defendant, upon inquisition, was adjudged insane and Burke appointed his guardian. Burke, as guardian, appeared and defended and there was a judgment in his favor, from which the plaintiff prosecutes this appeal.
Plaintiff amended his complaint by adding counts 2, 3, 4, 5 and 6. A demurrer was-sustained to counts 2,-3 and 4. Neither of these counts stated a cause of ac; tion. They aver no promise to plaintiff by def endant to pay for the value of the goods alleged to have been delivered or received by defendant; nor are sufficient facts alleged out of which an implied promise arose.—Chickering v. Bromberg, 52 Ala. 528. There was, therefore, no error in sustaining the demurrer to each of them.
With these counts properly eliminated, the cause was tried upon counts 1, 5 and 6. The first two were for goods sold and the last for money had and received. A number of defenses were interposed. Among these defenses was one that the money sought to be recovered was the price of spirituous, vinous and malt liquors sold in violation of law. Section 3524 of the Code makes all sales of spirituous, vinous or malt liquors to a person of unsound mind, without the consent of the parent or guardian of such person, void. Section 5079 of the criminal Code makes it an offense for any person to sell such liquors to a person known or reputed to be of unsound mind, unless it be upon the prescription of a physician or with the consent of the parent, guardian, husband or wife of such person. If McMinn was insane at the time of the alleged sale of the whiskey ¡to him and there was no consent given by the persons authorized to consent and no prescription of a physician, the sale was void, not only on account of being positively declared so by section 3524, but on account of being opposed to public policy. Such contracts cannot. be ratified or confirmed by subsequent acts or agreements of the parties. The sale being void an action will not lie to recover the price.—Moog v. Hannon, 93 Ala. 503. Nor is it of consequence that the ward’s estate got the benefit of the transaction by a resale of the whiskey and the appropriation of its proceeds.—Bluthenthal & Bickert v. The Town of Headland, 132 Ala. 249. So, too, it is of no consequence that the ward did not offer to return the whiskey during his lucid interval, if he had one. This he was not hound to do, since the sale was void, and incapable of ratification. Nor was it of any moment that the whiskey was sold by plaintiff to be resold in the ordinary course of business and not to be drunk by McMinn. No such exception is
We have but to apply these principles to the demurrers interposed to the plea invoking this defense -and to the replications thereto, to which demurrers were sustained, to see the correctness of the rulings of the court in overruling the former and sustaining the latter.
The only replication left to the plea setting up the defense above -considered, was the'one numbered 9. That replication alleged that the sale of the whiskey by plaintiff was made in the State of Tennessee, to be resold by defendant as a retail liquor dealer at Cullman, Alabama; that plaintiff did not know of McMinn’-s insanity and that the sale was in good faith, without fraud or imposition, for a fair consideration, and that s-ai-d sale had been so far executed that the parties thereto could not be restored to their original position. Issue was joined upon this replication. The evidence undisputedly, and without adverse inference to the contrary, shows that when the whiskey was bought by T. D. McMinn, a son of J. A. McMinn, the lunatic, the father was in -a hospital in Cincinnati and insane; and that it was bought a/ucl
The evidence having established without dispute the defense set up in the fifth plea and having disproven, without dispute or conflict, the ninth replication thereto, the court properly gave the affirmative charge for the defendant.
The exception reserved by plaintiff to the sustaining of defendant’s objection to the question propounded to witness Burke, if. error, was without prejudice, since the manifest, purpose of it was to show ratification by J. A. McMinn of the sale of the whiskey-.
So, too, if (there was error committed by the court in overruling the demurrers of plaintiff to special pleas 3 and 4 or in sustaining demurrers to the replications to those pleas, it was without injury.
We are not informed by the record at what stage of the trial ithe plaintiff offered to file the replication to plea 5 that “said goods were sold in Chattanooga, Tenn." The recital is, “after the court had sustained the defendant’s demurrers to the plaintiff’s replications and plaintiff
It may be well, in conclusion, to notice briefly the contention of appellant that the transaction cannot' be affected by the statutes referred to above because the same was made to T. D. McMinn and not to J. A. Mc-Minn, the lunatic. Accepting the correctness of the contention, then the plaintiff must fail for the obvious reason that he sold no goods to defendant’s ward, and, therefore, there is no liability for the price or for. money had and received. The whiskey was either sold ito J. A. McMinn or it was not. If sold to him his estate is not liable for the reasons stated above and if it was not sold to him, but to his son, then his son alone is liable.
Affirmed.
Dissenting Opinion
dissenting. They hold the view that the sale was not within the influence of sections 3524 and 5079 of the Code, but concur in what is said on the other questions involved.
