26 F. 515 | W.D.N.C. | 1885
{charging jury.) There is no conflict in the evidence, and the credibility of the witnesses has not in any way been assailed, and your verdict should be governed by the instructions of the court upon the questions of law involved. The defendant paid a special tax, and obtained a license which authorized him to retail liquors at his specified place of business in the county of Catawba.
The first witness said that he resides in the town of Denver, in Lincoln county, many miles distant from the place where the defend-
It is insisted by tbe defendant’s counsel that these transactions do not constitute a violation of tbe statute regarding retail dealers in liquors, as tbe contract of sale was completed at the defendant’s place-of business by tbe measuring and setting apart of tbe specific quantity of liquors ordered by tbe purchasers. The doctrines of tbe common law as to contracts of sale of personal property have been elaborately discussed by counsel, and I will briefly state some of the familiar principles of law on the subject as enunciated by Blackstone, Kent, and other well-known text writers. It is not necessary for me, in this trial, to refer to any of tbe nice distinctions which have been drawn by judicial minds in applying the law to tbe peculiar facts and circumstances of decided cases.
Contracts of sale of personal property, at the common law, should be so construed as to ascertain tbe intention of tbe parties in regard to tbe passing of tbe title of tbe subject-matter of tbe agreement. “If a man agrees with another for goods at a certain price, he may not carry them away before he has paid for them, for it is no sale without payment, unless tbe contrary is expressly agreed. ” Where a sale is proposed by a vendor, and the offer is accepted by the vendee, “tbe bargain is struck;” but if, by the express terms of the contract, anything remains to be done by tbe vendor before delivery, or the delivery is to be made at a future day, and at a different place, on the payment of the price agreed upon, a complete present right of property is not vested in the vendee. The contract is, however, obligatory, and if either party fails or refuses to comply with his agreement, he is responsible in damages, if the other party is ready and willing to perform his part of the contract. When the terms of the bargain have been agreed on, and everything that the vendor has to do with the goods to put them in a condition for immediate delivery, the sale is absolute, without actual payment or delivery, so that the property is in the vendee, and the goods are at his risk as to accident and damage. The vendee is not entitled to the possession until he pays or tenders the price, or gets a future day for payment, for the vendor has a lien on the property for the price, and only payment or tender of payment gives the vendee a right of possession. If the vendee tenders the price to the vendor, and he refuses it, the vendee may seize the goods or have an action for obtaining them.
When specific goods are sold on a credit, and there is no agreement as to the time of delivery, the vendee is entitled to immediate possession, and the right'of property at once vests in him. if goods
After this brief statement of a few well-settled principles of law, I will proceed to apply some of them to the facts which you have to consider in making up your verdict in this case. The provisions of the internal revenue daws relating to dealers in liquors seem to contemplate that the contract of sale shall be consummated in the place specified in the license granted, on the payment of the special tax; and that the liquor sold shall be delivered to the purchaser or his agent, on the payment of the price, or on an expressly agreed credit. All the rights of ownership must at once pass from the seller to the purchaser. A retailer’s acquired privilege is limited to carrying on Iris business at a certain place, where all of his transactions are subject to frequent official inspection, and he can have but few opportunities of evading the law.
If the messenger of the first witness had been an agent for the purchase of the liquor from the defendant, and had paid the money, and had the liquor measured, and set apart in a vessel for the purchaser, the contract of sale would have been completed at the defendant’s place of business, and he -would have been in possession of the