Garbracht v. Commonwealth

Mr. Justice Sterrett delivered the opinion of the court, January 3d 1881. The contention of the plaintiff in error is that the sales of intoxicating liquors, alleged to have been made without license in Mercer county and for which he was convicted and sentenced, were not made in that county, but in the city of Erie; and that, upon the uncontradicted testimony in the case, the jury could not have found otherwise if they had been properly instructed as to the legal effect of the evidence. The plaintiff in error had no license,-and the only fact which it was incumbent on the Commonwealth to prove was that he sold intoxicating liquors in the county of Mercer, as charged in the indictment. It was clearly shown that he obtained orders for whiskey, and in some instances collected bills for the same, in that county; but, this alone, without proof of delivery there, was insufficient to substantiate the charge of selling contrary to law within the jurisdiction of the proper court. To constitute a sale of personal property, especially under a penal statute, there must be a transfer of the title for a certain consideration. Orders for goods may be received, but until they are transferred or set apart to the purchaser the sale is incomplete. Delivery, either actual or constructive, is an essential ingredient in a sale of personal property. An agreement to sell is only executory until the contract is completed by delivery. When, as in the present case, the act of selling without license constitutes the offence, it must appear affirmatively not only that a sale, in the proper sense of the term, was actually made, but [452] it must be located within the proper county. Doubtless sales were effected through the agency of the plaintiff in error, but if they were not shown to have been made in Mercer county 'he was improperly convicted. The testimony, as to all the material facts, was not conflicting. The plaintiff in error was a travelling agent for H. V. Claus, a licensed wholesale liquor dealer, doing business in the city of Erie. The orders for whiskey which he solicited and received in Mercer county were transmitted to his employer, who filled them at his store in Erie, and shipped the whiskey, by freight or express, consigned to the parties respectively from whom the orders were obtained. It was put up in packages, addressed to the consignees in Mercer county, delivered to the carrier at Erie and transported thence, according to the usual course of business. There was no evidence that the plaintiff in error had any whiskey in his possession in Mercer county or that he personally delivered any there. It also appeared that he collected bills for some of th.e orders which he obtained. There was nothing in the testimony to justify the jury in finding that the facts were materially different from those above stated; and, assuming them to be true, we think the only legitimate conclusion is that Erie was the place of delivery, and in law the sales were made there and not in Mercer county. The place of sale is the point at which goods ordered or purchased are set apart and delivered to the purchaser, or to a common carrier, who for the purposes of delivery represents him. For example, a merchant in New York orders goods from a Boston .house and they are consigned thence to him, either by a carrier of bis own selection, or in the usual course of trade, the transaction is an executed Boston contract: 2 Pars. on Cont. 586. The same principle is recognised in Shriver & Co. v. Pittsburgh, 16 P. F. Smith 446; Finch v. Mansfield, 97 Mass. 89. In the former case, the city of Pittsburgh was authorized to impose a tax “ upon all articles of trade and commerce sold in said city,” and the question was whether certain goods were sold in the city. About one-sixth of the gross sales of Shriver & Co., wholesale grocers, were made directly at their store in the city without the intervention of outside agents. The other five-sixths were effected through agents employed for the purpose of procuring orders and making contracts of sale outside the city. These orders were transmitted to the firm, who filled them at their store in Pittsburgh, and consigned the goods to the purchasers by the most direct means of conveyance. Shriver & Co. contended that the sales, thus represented by the orders, were not made in the city, and hence they were not taxable on the amount so sold; but, it was held by this court that the goods thus ordered through their agents, put up at their store and shipped thence to their customers, were sold in the city, and that the amount should be included in their account sales returned for taxation. In Finch v. Mansfield, supra, the consideration of the notes [453] sued on was the price of liquors ordered by the defendant in Massachusetts from the plaintiffs in Connecticut through an agent of the latter, and the eardinal question in the case was, in which state was the sale made. The jury were instructed that if the agent merely solicited from the defendant an order for liquors and forwarded it to the plaintiffs in New Haven, and thereupon they filled it and delivered the goods to a common carrier directed to the defendant at Deerfield, Massachusetts, according to the order, the sale was in Connecticut. This instruction was excepted to, but the Supreme Court of Massachusetts held that it was correct even under the stringent provisions of the “ Maine law” then in force in that state. In delivering the opinion of the court, Mr. Justice Hoar says : “ If the agent had authority merely to receive and transmit to his principals, at New Haven, orders fOr'liquors to be sent by railroad to defendants in Massachusetts, the plaintiffs completing the contract by delivering them on the railroad in Connecticut, and defendant agreeing to pay the freight, it is very plain that this would not constitute a sale in Massachusetts. The only agreement to sell, or act of sale, would be at New Haven. The first existence of the contract would be when the plaintiffs, at New Haven, assented to defendant’s proposal, transmitted through the agent, and the sale would be completed when the liquors were delivered at the railroad .directed to the defendant.” The cases above cited appear to sustain the contention of the plaintiff in error, that under any reasonable view of the evidence the sales were made at Erie and not in Mercer county. If there had been evidence to show that he delivered any wh'iskey in the latter county or agreed to do so, and his agreement was carried out by his principal, a different ease would be presented; but, under the evidence before us, there was nothing to justify a jury in so finding. It was no doubt competent for the legislature to have made it an indictable offence for licensed liquor dealers, in person or by agent, to solicit or take orders for liquors, or offer to sell the same in any other county than that in which they are licensed and have their place of business ; but if it had been so intended the phraseology of the law would have been different. The eighth section of the act does in substance so provide as to non-residents of the state. It declares that no hawker, peddler or travelling agent shall engage in selling for any person or persons who are non-residents of this Commonwealth, “ or in vending, trading or contracting in any manner whatsoever in intoxicating liquors within the limits thereof.” This stringent provision as to non-residents indicates that the legislature did not intend t'o prohibit agents of licensed residents of the state from taking orders for the sale of liquors outside the county in which their principals are located. We think, therefore, that there was error in charging the jury, “that if they believe from the evidence, beyond all reasonable [454] doubt, that defendant solicited orders from the witnesses, or any of them, for the sale of liquors to him or them, and in pursuance of such orders so obtained, he sent them or either of them to Erie, to the house for which he testifies he was agent, and if that house sent the liquor down to these men, he is guilty.” There was also error in refusing to affirm defendant’s point; but, as has already been observed, if there was any evidence of delivery in Mercer county, by the plaintiff in error himself, or by his employer in pursuance of his agent’s agreement so to do, the point was properly refused, for the reason that it does not exclude Mercer county a's the place of delivery. The undisputed testimony, however, is that Erie was the place of delivery. We are also of opinion that as the case stood, the offer which forms the subject of the first assignment should have been received. The allegations of fact contained in this offer were, however, substantially proved by the witnesses. Judgment reversed, and record, with copy of this opinion setting forth the causes of refusal, remanded to the Court of Quarter Sessions of Mercer county, for further proceedings.