Silverman v. Rumbarger

Opinion by Reeder, J., This action was brought in the court below to recover a balance upon an account for several barrels of whisky sold by plaintiff to defendant. The appellant claims that the court erred in submitting the case to the jury because the plaintiff could not recover until he showed affirmatively that he had a license to deal in liquors. This contract was undoubtedly consummated in the city of Cincinnati in the state of Ohio where the plaintiff testifies he was engaged in the wholesale liquor business. These goods were there when they were sold to the defendant and were delivered to a common carrier, consigned to him, the freight to be paid by the defendant. The plaintiff produced evidence to show that he was engaged in the wholesale liquor business-in the city of Cincinnati. This prima facie was proof that he was lawfully carrying on that business and the burden was upon the defendant to show that he had a right, to take, use and not be compelled to pay for his property because he was carrying on a traffic illegal in the state of Ohio. “ It is a presumption of law that everyone has conformed to the law, and the burden is upon him who alleges the contrary: ” 19 Am. & Eng. Ency. of Law, 42. Even though this was a Pennsylvania contract the presumption would be with the plaintiff and the burden upon- the defendant to show that the goods were sold in violation of law because of the plaintiff not being a licensed-dealer. Justice Thompson in Horan v. Weiler, 41 Pa. 470. “ They might recover without producing their license and of course without saying anything about it in their narr. The cases cited by the appellee prove the rule that a breach of law will not be presumed against anyone, and that the presumption is to the contrary until proof overcomes it: 1 Greenleaf, 411; 1 Barn. & Aid. 463; 10 East, 216; 19 Johns. 345; 12 Wheat. 69; and that he who alleges the contrary must prove it, 3 East, 199.” Judgment affirmed.