Wasserboehr v. Morgan

168 Mass. 291 | Mass. | 1897

Field, C. J.

This action was tried by the court without a jury, and the finding was for the defendant. The view most favorable for the plaintiff is, that the evidence showed that the sale of the liquors was made, not in New Hampshire, but in Massachusetts, to the defendant, who lived in New Hampshire, with the knowledge or belief on the part of the plaintiff that the defendant intended to sell the liquors at his place of business in Manchester, New Hampshire. The plaintiff contends that there was no evidence on which the court could properly find that the plaintiff knew that the laws of New Hampshire prohibited the sale of intoxicating liquors, and that the defendant intended to sell the liquors at Manchester in violation of these laws, and no evidence that the plaintiff made the sale with the view or intention that the defendant should so resell them.

The defendant offered in evidence the Public Statutes of the State of New Hampshire of the year 1891, c. 112, §§ 15-21. They purport to have been enacted by the Senate and House of Representatives of the State of New Hampshire in General Court convened, and to have been approved by the Governor on April 11, 1891 ; and it is provided therein that they shall take effect on the first day of January'then next ensuing. These statutes prohibit and make criminal the selling or keeping for sale of any spirituous liquors, or of lager beer or other malt liquors, by any person not an agent of a town for the purpose of selling spirituous liquors. The statutes were rightly admitted in evidence, as was the testimony that the defendant nev,er had been a town agent in New Hampshire. Pub. Sts. c. 169, § 71. One objection made at the argument in this court to the admission of the statutes in evidence is that they were not properly pleaded in the answer of the defendant, but the objection at the trial was not put on this ground.

The declaration is on an account annexed for liquors sold at different times, from February 1,1893, to March 15, 1893. The order for the liquors was taken by one Boire, the plaintiff’s selling agent, who lived in Manchester, and the plaintiff testified that “ he sold some goods in Manchester through Boire at the time ”; that “ he did not know whether he had twenty or twenty-five customers in Manchester, or not.” The defendant testified, among other things, as follows: “ that he bought the goods of Boire at Manchester; that he was then fixing up a place to go into the liquor business; that he had conversation with Boire about it; that he told him what he was going to do; that he told him that he was going to fix up there and sell liquor, and that he sold him these goods; that it was after that that he sold him these goods; that he (Boire) saw the place he was fixing up; that he was down there ; that when the goods came, he thought that they were addressed to 58 West Summer Street; that-that is the same place that he was fixing up to go into business; and. that these goods were used in that place of business.”

It is not a violent inference of fact from the evidence that a wholesale liquor dealer in Boston, Massachusetts, accustomed as the plaintiff was to selling intoxicating liquors to retail dealers in New Hampshire, knew whether that State by its statutes prohibited the sale of such liquors except by town agents, or licensed the sale, or had no statutes on the subject; and it is a still less violent inference of fact that Boire, who lived in Manchester, New Hampshire, and was the selling agent of the plaintiff, knew what the statutory law of New Hampshire was on the subject, and the knowledge of the agent is the knowledge of the principal. Suit v. Woodhall, 113 Mass. 391. We think that it was competent for the court trying the case without a jury to find on the evidence that both the plaintiff and Boire knew that the statutes of New Hampshire prohibited the sale of intoxicating or spirituous liquors except by town agents, and that the defendant was not a town agent. The further inference that the plaintiff knew that the defendant intended to sell the liquors in violation of the statutes of New Hampshire, and that the plaintiff sold the liquors to the defendant with a view to such resale, is one that the court properly could make. If the liquors had been imported liquors, sold in the original package, we think that there would have been some evidence of it, and there was no such evidence. See Graves v. Johnson, 156 Mass. 211.

Exceptions overruled.