Small Grain Distilling Co. v. Davis

Hill, C. J. (After stating the foregoing facts.) The controlling question in the case is: Was a sale of the whisky made in the State of Georgia? If it was, the sale was illegal, and the plaintiff would have no right to recover its value. One can not recover the price of intoxicating liquor sold in violation of law. An act done in disobedience of law creates no right of action which a court of justice will' enforce. Miller v. Ammon, 145 U. S. 421 (12 Sup. Ct. 884, 36 L. ed. 759). The general rule of law is, that a contract made in violation of a statute is void; and that when a plaintiff can not establish his cause of action without relying upon an illegal contract, he can not recover; or, as otherwise tersely expressed: “There can be no civil right where there can be no legal remedy; and there can be no legal remedy for that which is in itself illegal.” This rule is so well established that any further citation of authority is deemed unnecessary. There may be some exceptions to this general rule, but the facts of the instant case do not bring it within any exception. We come directly to the question whether, under the admitted evidence, the sale was made in Georgia. The Civil Code, § 4125, declares that “Generally, the delivery of goods is essential to the perfection of a sale. . . Until delivery is made or dispensed with, the goods are at the risk of the seller.” Another general rule pertinent to the question now under consideration is that delivery to a common carrier is delivery to the consignee. Newsome v. State, 1 Ga. App. 793; Falvey v. Richmond, 87 Ga. 99; Mann v. Glauber, 96 Ga. 795. This proposition of law, however, is based upon the fact that the consignee gives to the consignor or shipper an order for the shipment of the goods. If Davis had ordered the whisky from the distilling compány to be shipped to him by way of the express company, or by any common carrier, the delivery to the common carrier would have been in law a delivery to Davis, and the title to the whisky would have been in Davis, and the sale would have been consummated in the 117 State of Kentucky. Here there was no order given by Davis to the distilling company for the whisky. Davis knew nothing about the whisky until after it had reached Wayside. The seller could not, by its unauthorized act in not only selecting Davis as the consignee, but also in selecting the carrier to make the transportation, put the title of the whisky in Davis. Where the seller undertakes to deliver the goods himself at the buyer’s place of business and selects his own carrier, the carrier is usually regarded as an agent of the seller, who thus assumes the risk of carriage. And so, where the sale is conditional upon payment on or before delivery, or the like, the mere delivery to the carrier before the condition precedent is performed will not ordinarily pass the title to the purchaser. 4 Elliott on Railroads, § 1414. Under the facts of this case, the distilling company not only assumed the risk of carriage, but also assumed the risk that Davis would accept and pay for the whisky. The proposed seller took the chance, probably relying upon the information which it states it had received from some of Davis’s friends, that he “was in the market for beverage refreshment.” Indeed, the whole conduct of the distilling company clearly shows, not a contract of sale, but a mere offer to séll, which was not accepted by Davis. The title to the whisky never got out of the distilling company. In fact no sale was consummated. It would have been consummated if Davis had paid for the whisky, and in that event the contract of sale would have been made in Georgia, where it was 'delivered to Davis, and would have been governed by the law of Georgia. The plaintiff can recover only on the theory that a sale was made to Davis; and the sale could not have been made, under the facts of this ease, anywhere except in the State of Georgia. Now, Davis refused to pay for the whisky. He first treated the shipment as a gift from some unknown friend, and when he was informed that it was an effort to sell him the whisky, he refused to buy, but nevertheless retained the liquor. If keeping the whisky and using it after having been notified that it was not a gift, but was intended as a sale, raised an implied assumpsit on the part of Davis to pay for the whisky, the contract was completed in Georgia. Probably, from a moral standpoint, Davis should have paid for the whisky after having used it, but courts have nothing to do with such questions, but are bound by rules of law. The distilling company knew that it was a violation of law to sell 118 whisky in. the State of Georgia, and, in thus endeavoring to evade the law of this State, the loss of both the whisky and the value thereof was only what it justly deserved. It is insisted by counsel for plaintiff in error that this shipment was protected by the interstate-commerce provision of the Federal constitution. He relies upon the case of Rose v. State, 133 Ga. 353. The .Rose, ease is distinguishable on the facts from the present case. In that case the Supreme Court held that a liquor dealer in Chattanooga, Tennessee, who solicited orders for sale of intoxicating liquors by a circular, sent through the United States mail from Chattanooga to a person in this State, where the sale of intoxicating liquors is prohibited, did not violate the criminal statutes of this State. In the present case there was no soliciting of orders by the plaintiff, but it shipped the liquor directly into this State without any order from the consignee, where, if a sale had been made, it would have been in palpable violation of the law of this State. Dealers in intoxicating liquors outside of this State can not in this manner create interstate-commerce and expect to be protected under the provisions of the Federal constitution. Cureton v. State, 136 Ga. 91 (70 S. E. 786). Judgment affirmed.