United States v. Chevallier

107 F. 434 | 9th Cir. | 1901

GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

Since the contract was offered to the court as part of the defendant’s defense, and for the purpose of showing the exact nature of his dealings with his agent, the averments of the answer may be construed with reference to it, and consideration of the demurrer may he con-lined to tiie facts which are disclosed by the contract, aided by such portions of the answer as are necessary to explain its meaning. Briefly, (hen, the facts disclosed in defense of the action are that the defendant, in error maintained a branch house in Oregon, a place which bore his sign, and where presumably samples of his wines and liquors were kept, and where the public were invited to purchase. The manager at Portland was a “salesman.” He was authorized to sell, and he was required to sell, judiciously, hut the right to cancel his contracts was reserved to the defendant in error, who filled all orders, and delivered the ordered goods to a carrier at San Francisco, and consigned them to the purchasers in Oregon. Under this state of facts, were the liquors sold or offered for sale in Oregon, or were they sold and offered for sale in San Francisco? It may be conceded

that in selling specific goods the place of sale is the place where a binding contract for their disposal is entered into, although the property itself may be situated elsewhere. But the sales in this instance were not sales of specific articles. They were sales of goods carried in stock. Fo sale was .or could be complete until the goods were separated from the goods in stock and delivered to the carrier. This was the last act to consummate the sales, and it was done in San Francisco. When the goods were' thus segregated and placed in charge of the carrier, to be transported to the purchasers, the right of the vendor over them ceased, and that of the purchaser began. It is immaterial, therefore, whether the authority of the agent in Portland was limited to the power to receive and transmit orders, or was broad enough to include the power to make a binding contract of sale. For is it material that he collected the purchase money on sales so made. In Abberger v. Marrin, 102 Mass. 70, the court said: “As between vendor and vendee, title to specific personal property passes by the contract of sale. But, where the sale is of goods generally, no property in them passes tfil delivery, because until then the very goods sold are not ascertained.” It is true that in Taylor v. Pickett, 52 Iowa, 467, 3 F. W. 514, it was held that where an agent sells liquors, and sends to his principal a statement of the sale, for the latter to fill by forwarding to the purchaser the liquors specified, the sale is made where the agent resides; but we find no support elsewhere for that doctrine. The current of authority is that, even in a case where the sale is made by the owner of the goods in person at a place other than that in which the goods are situated, the sale is not completed until the property is actually separated from the stock in the store, and delivered to the carrier, and that the place of such delivery is the place of sale. Dolan v. Green, 110 Mass. 322; Abberger v. Marrin, 102 Mass. 70; Webber v. Howe, 36 Mich. 150; Sortwell v. Hughes, 1 Curt. 244, Fed. Cas. No. 13,177. See, also, Garbracht v. Com., 96 Pa. 449; Woolsey v. Bailey, 27 N. H. 217; Sarbecker v. State, 65 Wis. 171, 26 N. W. 541; Gross v. Scarr, 71 Iowa, 656, 33 F. W. 223. A different case would have been presented if it had been shown that instead of sending the goods to the purchasers by a common carrier, the freight to be paid by the purchasers, the vendor had paid the freight charges, or had sent the goods by express, to be paid for on delivery from the express company, or had consigned them to his agent, to be by him delivered to the purchasers. Weil v. Golden, 141 Mass. 364, 6 F. E. 229; State v. O’Neil, 58 Vt. 140, 2 Atl. 586; U. S. v. Shriver (D. C.) 23 Fed. 134; U. S. v. Cline (D. C.) 26 Fed. 515; Com. v. Eggleston, 128 Mass. 408; Com. v. Shurn, 145 Mass. 150, 13 N. E. 395.

For do we think that the defendant by maintaining his office at Portland under the contract has there “offered” wines and liquors for sale, within the meaning of the statute. Goods are offered for sale at the place where they are kept for sale and where a sale may be effected. They are not offered for sale elsewhere, by sending abroad an agent with samples or by establishing an office for the purpose of taking orders. It must be held that the offer to sell in this case is an offer to sell at the place where sales are in fact made, and at the only place where they are made, which is in San Francisco. It may be true, as suggested by counsel for tbe plaintiff in error, that the method of transacting the business of the defendant in error in Oregon has been devised with the view of evading the payment of the special tax, and that by establishing his branch office in Portland he there enters into competition with wholesale dealers who are required to pay the special tax, and that thereby the revenues which otherwise would accrue to the government are diminished. These considerations suggest, perhaps, reasons why the statute should be altered to meet such a case as is here presented. We find no remedy for it in the plain intendment of the existing statute. The judgment of the circuit court will be affirmed.