Commonwealth v. Coshey

Opinion by Oklady, J., This defendant was an employee of the Independent Brewing Company of Pittsburg, which corporation was the owner of a brewery located at Latrobe, Westmoreland county, the latter corporation plant was known as the Loyalhanna Brewery, and held a brewer’s license granted by the court of quarter sessions of that county. The sales involved in this case were made by this defendant in Indiana county. The indictment was drawn under sec. 15, of the Act of May 13, 1887, P. L. 108. The defendant while admitting that the sales were made, contended that they were proper and lawful by virtue of the license held by his employer, as above stated. The methods adopted by the brewing company in making sales of its product were fully developed on the trial. This defendant was employed, under a carefully prepared contract in writing, of more than 500 words, in which it was stipulated that he was to render services as an order solicitor, as set forth herein. He was specially directed as follows: "You are not permitted and are expressly directed not to do or undertake to do—First—To take any oral orders and money for the sale or delivery of beer from any person. Second—To agree to deliver beer under any circumstances or conditions whatsoever; other employees of the company will attend to the deliveries of beer. You will call the attention of the person from whom you receive the order to the fact, that certain draymen will if he employs them, deliver the beer from the station at which the common carrier or railroad company delivers it, in accordance with the order, to the person giving you the order, as he may direct, providing such person will pay' the cost of the drayage from his station to his residence, or point at which he desires the beer ordered to be delivered to him for consumption, and furnish him with a card of such draymen authorizing the drayman to lift the beer at the railroad station and deliver it to the customer in accordance with delivery directions — 204 — printed on such card, which is to be mailed- or delivered to sain drayman.” The order suggested in the written contract by which Coshey was employed, is equally comprehensive and definite. It is directed to the superintendent in charge of Loyalhanna Brewery, at Latrobe, Westmoreland county, the substantial parts being as follows: "Herewith find $........, for which please furnish me......case beer. It is understood that I purchase the beer ordered as above at your brewery and by this order. When this order is accepted by you there is sold to me the contents of the package above specified at your brewery, and when the package is marked for delivery, as hereinafter specified, at your brewery, the contents thereof become my absolute property. The marking of the package and the setting aside of the same in accordance with this order to be regarded by your company and myself as the delivery of the contents of said package purchased as aforesaid at your brewery. ■Please deliver by your wagon the beer so purchased by me at ............. The package containing the beer purchased at your brewery as aforesaid remains your property, deliverable to you at the point specified to which the beer is to be consigned; re-delivery of the package to be at your risk and expense. I am of legal age and of temperate habits. The above order is in my language and I understand it. This order constitutes the entire and exclusive contract for the sale of the beer herein mentioned, and shall not be binding on the brewery company until accepted by said company at one of its breweries.” This order was arranged so as to be signed by the purchaser. The necessity for such regulations was apparent, and they were presumably adopted to meet the views of this court in Star Brewery Co.’s License App., 43 Pa. Superior Ct. 577, and Com. v. Guinzburg, 46 Pa. Superior Ct. 488, in which we held, "Where the sales are made through a solicitor, working in a county other tha.-n — 205 — that for which the dealer is licensed, who takes orders which are subsequently filled on an agreement as part of the contract of sale that the liquor bought is to be delivered to the purchaser at his residence or place of business, it does not follow as a conclusion of law that the mere setting apart of a package or quantity of liquor corresponding with the amount of the buyer’s order in the store of the vendor constitutes a sale and delivery at the latter place.” Delivery actual or constructive is necessary to complete the sale, and the manner of delivery is a proper subject of agreement between the buyer and seller: Com. v. Holstine, 132 Pa. 357; Com. v. Guja, 28 Pa. Superior Ct. 58. “What is the contract, is a question for the jury unless in writing and unambiguous.” See also Com. v. Martin, 49 Pa. Superior Ct. 626; Com. v. Rossi, 53 Pa. Superior Ct. 210. In regard to the orders given for beer,,, the trial judge said: “It seems to us in examining this paper (the order) that the clauses relating to delivery are so inconsistent that they cannot both be applied, and the reasonable construction seems to us to be, that which the evidence seems to indicate was followed, in practice at least, by some of those signing orders and approved by the company’s solicitor, that is, to request verbally a delivery at a particular address in Blairsville, which direction was inserted in the order.” It is manifest from the evidence that the instructions given to this defendant, as an order solicitor, were not complied with, so that the bona fides of the order, and the means adopted to effect the sale and delivery of the beer were questions of fact to be disposed of by the jury. It is also manifest that the actual delivery of the beer was intended by buyer and seller to be in Blairsville, in Indiana county, where it was to be consumed. Despite the statement in the order that, “it constitutes the entire and exclusive contract for the sale of the — 206 — beer herein mentioned” the place of sale and delivery is to be determined by the conduct of the parties to the contract. The writing,, is not the contract, but is no more than evidence of. what the parties intended the contract to be. The words used are not controlling, if the parties by their acts contradict or ignore them. If the jury would find that it was a mere trick or artifice to formally comply with the law yet evade it, the words, however pertinent to the subject-matter would not protect an offender. In examining the testimony, we find ample testimony to justify a jury in concluding that the written order had but little force in determining the legal character of the several transactions. John Lungo, an Italian, who required an interpreter on the trial, received one case of beer each week on orders given by his wife to Coshey. These deliveries followed orders that were signed by his daughter with his name; the wife paid the money to the solicitor. The beer was ordered by his authority to be delivered at his home, but he never signed' an order, read one or had it read to him. Dan Rodish, examined through an interpreter, testified as follows: “Q. Could you read that paper? A. I saw his name. Q. Did you read it? A. Sometimes I did and sometimes I didn’t, I had no time. Q. Did you know what was in it? A. No. Q. Did he read it to you? A. No. Q. Did you sign your name to it? A. Yes, sir. Q. Why did you sign your name to it? A. Because I gave the order for the beer. When I signed my name, I paid him right away, as much as I needed, sometimes five kegs, sometimes ten kegs. Q. Was there anything said about where the beer was to be delivered? A. He told me he would deliver it another day, to my house.” Peter Jackson testified: "Q. Did you read the blanks? A. Portion of it,. I read down as far as, 'Please find enclosed $1.00, for which please send me beer,’ whenever I wanted it. I read the whole thing over once or twice, — 207 — every time I ordered was by mail. I didn’t order beer in any other way from that brewery. I ordered either by common paper or blanks.” M. E. Brown signed an order for a case of beer and some time after ordered another case by phone. “I supposed by signing the order that I had opened an account with the brewery. I ordered by phone and it was delivered to my house. I paid by check direct to the brewery.” Clarence Ferguson signed an order, and testified as follows: “Q. What did it say? A. The order means, when you sign, that it is to be delivered at your house or place of residence by the brewing company on their wagon. Q. Did Mr. Coshey tell you it would be delivered where you wanted it? A. I asked him if he would deliver it where I wanted it, and he said, wherever you want it, it shall be left. It was left at my house where it always was left. Q. Did you always pay Mr. Coshey when you ordered it? A. Yes, because he was the only authorized man to pay.” Enrico Forni, through an interpreter, testified, “Q. Did you read the order? A. I didn’t understand the order. Q. Who read it to you? A. Mr. Coshey. Q. Did you understand it when it was read to you in the English language? A. Yes, sir, I did. Not the whole thing, but I understood quite a bit. Q. What part did you understand? A. That a man under twenty-one years of age cannot order any beer.” These quotations from the testimony of a large number of witnesses indicate the method pursued by the order solicitor, and the jury might easily find that however plausible the writings sounded, the actual contract, and the- fact of sale and delivery in Indiana county was arranged for by the solicitor and purchaser independently of the written order. As stated by Porter, J., in Com. v. Rossi, 53 Pa. Superior Ct. 210, “A sale really consists of two separate and distinct elements; first, a contract of sale which is completed when the offer is made — 208 — and. accepted, and second, a delivery of the property which may precede, be accompanied by, or follow the payment of the price, as may have been agreed upon between the parties. The passing of the title in a sale of chattels depends on the intention of the parties to be discovered from the contract and circumstances.” Under the testimony adduced on this trial, very much, if not all' of the formal averments in the writings were not considered by the parties as having any bearing on the contract. The orders were not read, and if formally signed, the explicit provisions were ignored. The technical declarations in regard to marking of the package to indicate the passing of title at the brewery, and delivery by common carrier as the absolute and specific property of the purchaser might have considerable weight under ordinary circumstances, but in the case of prosecution of the seller for violation of our liquor laws, these refinements in definition are rightly examined with special care to ascertain whether they are made to literally comply with our statutes or are an ingenious device to evade them. As said by Chief Justice Paxson, in Com. v. Holstine, 132 Pa. 357, with reference to the Act of May 13, 1887, P. L. 108, “The devices to evade it are so numerous and so adroit, and the consequences of its violation are so serious to the welfare and good order of the community generally, that we think it the duty of the courts to enforce the law rigidly. It is needed that all who engage in this traffic in violation of law should know that the way of the transgressor is hard.” The acts of assembly quoted are intended to regulate and restrain such sales, which are perhiitted only when every statutory requirement is complied with. The sales having been made out of the county in which the brewery was licensed it was necessary to show that the delivery of each package had been completed at the brewery, and 'the intention of the parties is to be collected not from detached parts of the writings, but from the whole transaction, with its attendant circumstances. The words of the second paragraph — 209 — of the order declare that the markings of the package and setting it aside is to be regarded by the company and purchaser as a delivery of the contents of the package at the brewery at Latrobe, Westmoreland county. The significance of the third paragraph is apparent, as qualifying or contradicting it, viz.: “Please deliver by your wagon the beer so purchased to me at 62 Liberty St.; 28 Brown St.; 130 Market St.; 258 E. Market St.; 214 Market St., and, etc., in Blairsville, Indiana county.” The court rightly charged the jury that the Loyalhanna Brewing Company had no authority in law to deliver beer in Indiana county, by its wagons, marked or unmarked. If it does make such deliveries, the place of delivery in Indiana county is the place of sale, and being unauthorized by the brewing company’s license, the sale is in violation of law. The case was fully tried and the law applicable to the disputed facts was adequately presented to the jury. The assignments of error are overruled, the judgment is affirmed, and it is ordered that the defendant appear in the court below at such time as he may be called, and be by that court committed until he has complied with the sentence imposed.