76 Iowa 17 | Iowa | 1888
— Appellee filed a motion to strike the evidence from the abstract, on the ground that it had not been properly preserved or made part of the record. But as the material questions in the case can be determined without considering the evidence, we do not decide the motion.
The district court gave the following instructions, on which error is assigned: “12. If, after a
careful consideration of the evidence under the foregoing instructions, you find the plaintiff is entitled to recover against defendant Benham, you will next inquire and ascertain from the evidence whether the defendant Owen had any knowledge and gave any consent to the sale or furnishing of any intoxicating liquors to the said C. M. Wing by the said Benham or his clerks. Knowledge thereof and assent thereto by the said George B. Owen, agent of defendant David Owen,- will be sufficient to charge said premises with a lien for any sum you may find against defendant Benham; .and if you find from the evidence, besides other facts and circumstances, that intoxicating liquors were sold by said Benham or his clerks in said building, contrary to law ; that the traffic had been continued for a considerable length of lime ; that said saloon was in a public place, in a large building, of which said George B. Owen had charge and looked after during the time plaintiff’s husband resorted there to procure intoxicating liquors, if he did ; that the said George B, Owen passed the said saloon frequently when at home; that he sometimes entered said saloon, and purchased or obtained intoxicating liquors therein ; that the said room was fitted up for saloon purposes ; that the said Benham procured and had posted up in said saloonta government license to sell spirituous liquors ; that the purpose for which said room in said
Without looking into the evidence contained in the .abstract, we must presume that there was evidence which tended, to prove the facts and circumstances referred to in the twelfth instruction, viz., that Benham kept a saloon in the'building, and theré carried on the business of selling intoxicating liquors contrary to law, and that the unlawful traffic was there carried on for a considerable length of time, and that defendant’s agent, who had the care of the property for him, knew of the unlawful use to which it was being devoted.. And under the last clause of the instruction the jury were warranted in finding from those circumstances, if they were proven, that defendant assented to that use of his property.
Reversed.