212 Mo. 648 | Mo. | 1908
— At the September term, 1907, of the circuit court of Webster county, under an information filed by the prosecuting attorney of said county, charging the defendant with selling one gallon of whiskey in said county, on the 2d day of February, 1907, to one Ira Morton, in violation of the Local Option Law in full force and effect in said county at that time, the defendant was found guilty and his punishment assessed at a fine of three hundred dollars. De
The evidence tended tó prove that the defendant was a wholesale and retail liquor dealer, with office and place of business in Kansas City, Jackson county, Missouri; and did business under the trade name of “Penwood Company.” Ira Morton, a resident of Marshfield, in Webster county, Missouri, some time in January, 1907, ordered a gallon of whiskey from said' Penwood Company, and on February 2, 1907, the whiskey was received by him from the agent of the Wells-Fargo Express Company, at the office of said company in Marshfield. The whiskey was sent in a package marked C. O. D., and Morton paid said express agent the price thereof, $3.50; at the time of delivery, and the express agent sent the money to defendant’s office at Kansas City, where it was received. Morton testified that he mailed the order to defendant of his own motion, without any solicitation on the part of defendant, or any one on his behalf, and solely because he wanted the liquor for his own use. The express company received the package containing the whiskey from one of the defendant’s employees at Kansas City, and shipped the same to Morton, at Marshfield. The evidence further tended to prove that the transaction was carried out by defendant’s clerks, without his knowledge, while he was at Hot Springs, Arkansas; that while he had been making similar sales and shipments, on C. O. D. terms, to parties in other States, he had no knowledge that his clerks were making for him any such shipments to any local-option county in Missouri; that he had never solicited any business of that kind in Missouri either by agent or through the mails, and that up until the time of his arrest he was unaware that any such shipments had been made, nor had he authorized any.
The State introduced evidence tending to prove
The important question presented by this appeal is whether the place of sale of the liquor which the defendant is charged with selling unlawfully was in Webster county or Jackson county, Missouri. Defendant insists that the sale was at Kansas City, Jackson county, where he was authorized by law to sell liquor, and that he was guilty of no offense in accepting and filling an order from a party in a local-option county requesting the shipment to him, C. O. D., of a specified amount of liquor, to a point in said local-option county of Webster.
As a general rule the delivery of goods by the vendor to the carrier, when the goods are to be sent that way, is equivalent to delivery to the purchaser, subject only to the right of stoppage in transitu. [2 Kent’s Com., 490; State v. Wingfield, 115 Mo. 428; Kerwin & Co. v. Doran, 29 Mo. App. 397; Garbracht v. Commonwealth, 96 Pa. St. 449; Dunn v. State, 8 S. E. 806.] And this is true although the purchase money is after-wards collected by the vendor or agent at the place from which the goods are shipped. [State v. Hughes, 22 W. Va. 743.]
But when the goods are shipped upon order C. 0. D., as in the case at bar, there is much conflict in the authorities as to where. and when the title passes, that is, whether at the point of shipment or at the point of destination, upon payment of the purchase price. In American Express Co. v. Iowa, 196 U. S. l. c. 143, it is said: “True, as suggested by the court below, there has been a diversity of opinion concerning the effect of a C. O. D. shipment, some courts holding that under such a shipment the property is at the risk of the buyer, and, therefore, that delivery is completed when the merchandise reaches the hands of the carrier
Among the authorities which hold that a sale C. 0. D. is not complete until delivery, acceptance, and payment of the purchase price by the person ordering the goods, may be cited: United States v. Shriver, 23 Fed. 134; United States v. Cline, 26 Fed. 515; State v. United States Express Co., 70 Iowa 271; State v. Wingfield, 115 Mo. 428; State v. O’Neil, 58 Vt. 140; State v. Goss, 9 Atl., 829; United States v. Chevallier, 107 Fed. 434; Baker v. Bourcicault, 1 Daly (N. Y.) 23; Crabb v. State (Ga.), 15 S. E. 455; Dunn v. State, 82 Ga. 27; State v. Intoxicating Liquor (Vt.), 2 Atl. 586; Wagner v. Hallack, 3 Colo. 176; O’Neil v. Vermont, 144 U. S. 323; Town of Canton v. McDaniel, 188 Mo. 207. But in 17 Am. and Eng. Ency. of Law (2 Ed.), 301, it is said: “At least so far as cases dealing with intoxicating liquors are concerned, however, the weight of authority is against the foregoing view, and it is generally held that where intoxicating liquors are ordered to be shipped C. O. D., the salé is completed when the liquor is delivered to the carrier; ’ ’ citing Pilgreen v. State, 71 Ala. 368; Hunter v. State, 55 Ark. 357; Berger v. State, 50 Ark. 20; Bunch v. Potts, 57 Ark. 257; Com. v. Russell, 11 Ky. L. Rep. 576; Com. v. Kearns, 15 Ky. L. Rep. 332; Current v. Com., 11 Ky. L. Rep. 764; James v. Com., 42 S. W. 1107; State v. Intoxicating Liquor, 73 Me. 278; Com. v. Fleming, 130 Pa. St. 138; State v. Flanagan, 38 W. Va. 53; State v. Hughes, 22 W. Va. 743. The same doctrine is announced by the courts of Texas and other States.
In Com. v. Fleming, supra, it is decided that the term “C. O. D.” placed upon an express package, means that the carrier is thereby directed to collect
"What was said by this court upon this question in State v. Wingfield, supra, and in Canton v. McDaniel, supra, was unnecessary to a decision of either of those cases, because the shipments were not C. 0. D.> and therefore what was said respecting such shipments
There is no question that Morton ordered the liquor in question for his own use, C. O. D., and when it was so shipped, the sale became complete at the place of shipment.
The defendant next insists that the transaction shown in evidence constituted interstate commerce within the meaning of section 8, article 1, of the Constitution of the United States, for the reason that the route of the shipment was partly through the State of Kansas, and that it is and was beyond the power of the State to restrict, prohibit or interfere therewith. Upon the other hand, the State contends that the shipment in question was not an interstate shipment, that is, a shipment from one State to another, and that whether it was so or not is immaterial in this case, which is a prosecution for the unlawful sale of liquor in a county which had theretofore adopted the Local Option Law. The question was properly presented by instructions asked by the defendant, and refused by the court, to which action of the court the defendant saved an exception.
Conceding, fob the sake of argument, that the shipment was interstate, as contended by defendant, we cannot see how or in what way such fact is available
Our conclusion is that the sale of the liquor was completed when shipped at Kansas City, Jackson county, Missouri, and not at Webster county, Missouri, as charged in the information.
The judgment should be reversed and the'defendant discharged. It is so ordered.