82 A. 533 | N.H. | 1912
The information charges the unlawful sale of two quarts of whiskey to one Lyford, at Laconia, December 10, 1910. By agreement, the case was tried by the presiding judge, who found a verdict of guilty. The sale charged was prohibited by section 15, chapter 112, Public Statutes: "If any person, not being an agent of a town for the purpose of selling spirit, shall sell . . . any spirituous liquor, in any quantity, he shall be fined," etc. The exception to the general verdict, which is not expressly stated to be based upon the special facts found, raises merely the question whether any of these findings are as matter of law so inconsistent with the general finding of guilty that that finding cannot stand. If, however, the case was intended to mean that the general verdict was based upon the special facts stated, the additional question would be presented whether the inference of guilt could reasonably be drawn from these facts. Kidd v. Trust Co.,
Taking the view most favorable to the defendant, were there facts in evidence from which the inference that Gross sold Lyford spirituous liquor in Laconia, as alleged, could be drawn? The account of the transaction is that Lyford went to the defendant's office in Laconia for the purpose of buying whiskey; that he told the person in charge (Otto A. Gross, who was the defendant's brother and agent) that he wanted to buy two quarts of whiskey. He was asked what kind of whiskey, and he replied "good whiskey." Gross then said he would give him a certain brand. Lyford paid the price asked and was told that he could get the whiskey at the express office in Laconia the next day. These facts show an offer to buy, an acceptance of the offer, payment of the price, and a delivery to the purchaser in this state, and authorize, if they do not require, a verdict of guilty. No question has been raised because the transaction of the offer, payment of the price, and a delivery to the purchaser in this state, and authorize, if they do not require, a verdict of guilty. No question has been raised because the transaction was entirely with the defendant's agent. The fact found, that as a general thing the business the defendant carried on at his office was transacted as in this case, authorizes the inference that in this case the acts of the agent were authorized or ratified by him and were his acts. State v. Roberts,
The specific finding relied upon to upset the verdict is that Gross, the defendant, did not have any property in the whiskey delivered to Lyford. But that fact is immaterial. "A servant of agent is liable under the statute for unlawfully selling spirituous liquor, the property of his principal." State v. McGuire,
It is further objected that the defendant did not have possession of the whiskey and did not deliver the whiskey from the place of sale. Briefly, the course of business was as follows. The defendant was engaged in the liquor business as a licensed dealer when such business was permissible in Laconia and Ashland. After these places voted against licensing the sale of liquor, he entered into an arrangement to sell liquors for a firm in Boston, who gave him a writing saying: "We take pleasure in introducing Mr. E. C. Gross, who is now selling goods for us in New Hampshire. Any order you may entrust to his care will be promptly executed by ____." Since receiving the above, the defendant has occupied the premises in Laconia formerly used by him as a licensed dealer for the sale of liquors, and has been engaged in taking orders for spirituous and malt liquors. The case contains the form of an order blank addressed to E. C. Gross, agent, Laconia, in the following terms:
"Dear Sir: Kindly send the following order by Am. Express for which please find enclosed $ ___ for payment of same.
Items Brands Price
Yours truly,
Important: Cash must accompany order. All orders are received subject to the acceptance of the shipping firms in Boston, Mass."
The defendant's agent with whom Lyford dealt, after payment by Lyford, wrote on such a blank the brand and quantity of whiskey *307 agreed upon and "Name, John Lyford, call for, Laconia, N.H.," and sent the same to the Boston firm, who filled the order at their place of business in Boston and shipped the whiskey by American Express, addressed to Lyford at Laconia. Lyford called at the express office as directed by Gross and the whiskey was delivered to him, he paying the express charges.
If the course of business indicated by this blank had been carried out, a different question would be presented. If it were found, or the evidence conclusively proved, that Lyford merely employed Gross to transmit an order for him to a firm in Boston, directing them to deliver spirituous liquor to a common carrier in Boston for transportation to him in Laconia, the inquiry would necessarily take a different course. But nothing of that sort was done. Lyford was not requested to sign a blank of any kind or description; the matter of the defendant's agency was not mentioned. Lyford had heard that the defendant was the agent of a concern for the purpose of taking orders for liquor; but from what took place at the time, he understood he purchased whiskey of Gross and did not understand he had authorized Gross to order whiskey shipped to him.
In view of these facts, it is clear it was not found that Lyford, through Gross, purchased the whiskey in Boston, or that the title passed to Lyford when the goods were delivered to the Express Company. The sale was not in Boston, but in New Hampshire; and the title passed in Laconia when the goods were delivered to Lyford at the place where he was directed to apply for them. State v. Leary,
Whether the agency scheme for the sale of liquor indicated by the facts found, but which the case finds is not generally followed, is a violation of chapter 112, Public Statutes, or its amendments, is not now before the court. If it were, it might be important to ascertain whether the agency was real or formal. Whatever the relation, however, between Gross and the Boston firm, upon the facts found, as between Gross and Lyford, Gross was the vendor. The contract of sale was made in New Hampshire, payment was made, and the sale was completed by delivery here. The transaction was intrastate and not interstate. The fact that Lyford paid the express charges did not convert the transaction into a sale in Massachusetts. That was a mere incident of the intrastate contract of sale. Banker Bros. v. Pennsylvania,
The evidence objected to, that the defendant collected empty beer cases delivered containing beer upon orders taken by him, related to the method of doing business and was not incompetent. If immaterial as having no relation to the particular transaction held sufficient to authorize the verdict, it could have had no tendency to produce the verdict and was not prejudicial.
Exceptions overruled.
BINGHAM, J, dissented: the others concurred. *309