Kennedy v. Saunders

142 Mass. 9 | Mass. | 1886

Gardner, J.

1. The defendant contends that “the written notice claimed to have been given by the plaintiff to the defendant was not a sufficient compliance with the provisions of the Pub. Sts. c. 100, § 25.” The defendant does not point out any defect in the notice claimed to have been given, nor any want of compliance therein with the requirements of the statute. The language of the statute is as follows: “ The .... wife .... of a person who has or may hereafter have the habit of drinking spirituous or intoxicating liquor to excess may give notice in writing, signed by ... . her, to any person, requesting him not to sell or deliver such liquor to the person having such habit.”

It is not necessary that the notice should be in the language of the statute. It is sufficient, if it conveys to the person notified, in clear and unmistakable terms, the substance of the requirement of the statute. The plaintiff was to give notice to the defendant in writing, signed by her, requesting him not to sell or deliver spirituous or intoxicating liquor to her husband, having the habit of drinking such liquor to excess. The notice actually given did not contain the words spirituous or intoxicating liquor. It stated that her husband “ had been in the habit of getting liquor here and. coming home drunk,” and requested the defendant not to give him any more drink. The meaning was clear, and the defendant must have understood it. We think that the notice given was a sufficient compliance with the provisions of the statute.

2. The defendant contends that, under the statute, “the plaintiff is not entitled to recover two separate sums of money for loitering within the time set forth in her declaration ; nor two separate sums for sales or deliveries within the time set forth therein; ” in other words, that the notice is exhausted by the recovery of one sum for loitering, or one sum for a sale or delivery of liquor; and that a new notice must be given before the plaintiff can again recover. The statute provides that, “ if the person so notified, at any time within twelve months thereafter, sells or delivers any such liquor, .... or permits such person to loiter on his premises, the person giving the notice ” may recover, &c. We do not think that the Legislature intended to limit the right of action as is contended by the defendant. The words “ at any time within twelve months thereafter,” as used in the statute, empower the one who has given the notice to "recover of the person notified for each sale or delivery of intoxicating liquor to the person having such habit, and for each time such person is permitted to loiter, &e., during the twelve months after the notice has been given. This interpretation of the statute carries out the purpose of its enactment. The Superior Court rightly refused to rule as requested by the defendant, and the instructions given to the jury were correct.

Exceptions overruled.