Sherley v. McCormick

Colburn, J. The laws of the United States regulating the business of distilling spirits, with reference to which the contract in question in this case must have been made, throw light upon the construction of the contract. It is required by the U. S. Rev. Sts. § 3271, that “ every distiller shall provide, at his own expense, a warehouse to be situated on and to constitute a part of his distillery premises, and to be used only for the storage of distilled spirits of his own manufacture until the tax thereon [130] shall have been paid; ” and this section further provides that such warehouse when approved shall be a bonded warehouse of the United States, to be known as a distillery warehouse, and be under the direction and control of the collector of the district. Section 3274 provides that “every distillery warehouse shall be in the joint custody of the store-keeper and the proprietor thereof; ” and § 3287 requires that all distilled spirits shall be removed immediately into the distillery warehouse. The contract in question, though somewhat obscure in expression,— its obscurity caused in part by its having been partly written and partly printed, and the written part not always inserted where it properly belonged, — can be sufficiently understood when considered with reference to the statutes. The contract contemplated that the title to the whiskey should pass to the defendant when it was in some bonded warehouse, and this must necessarily have been the bonded warehouse connected with the distillery of E. L. Miles & Co., in Kentucky. The whiskey was not in existence when the contract was made; and the court was right in ruling that the contract was for a sale to. be made in Kentucky, and not in Massachusetts; and in excluding the evidence offered, that neither the plaintiffs nor their agent had a license to sell spirituous liquors in Massachusetts, as immaterial. Abberger v. Marrin, 102 Mass. 70. Ely v. Webster, 102 Mass. 304. Brockway v. Maloney, 102 Mass. 308. Orcutt v. Nelson, 1 Gray, 536. By the U. S. St. of May 28, 1880, § 4, the whiskey might have remained in bond for three years after it was entered; and there is nothing in the contract to show that it was intended that it should ever come to Massachusetts, though this consideration is perhaps immaterial in this case. The contract was dated March 18, 1881, and was for the sale of the product of a certain distillery. The words, “We agree to sell you three hundred barrels E. L. Miles & Co. Bourbon whiskey, distilled by E. L. Miles & Co., New Hope, Nelson county, Ky., 100 bbls. in the month of November, 1881,” &c., taken-alone, may mean that the sale was of whiskey to be distilled in that month, or that the whiskey was to be delivered in that month. But the words, “ If the month of November is already full, or nearly so, then give him what you can of the hundred, [131] and the difference deduct from this contract, for one hundred November,” appear to relate to the product of that month. This sentence was written into the contract, and the words, “ Write him about it,” in the next sentence, are also in writing, followed by printed words, and appear to belong with the last sentence. As the defendant was to pay storage “ from the date of the original inspection into bond,” and as, by the laws of the United States, the whiskey was to go into bond as soon as distilled, it can hardly be supposed that the defendant agreed to pay for storage before November. The provision that, in case of the destruction of the distillery, the contract should be void, so far as unexecuted, clearly shows that the parties had in view whiskey to be distilled at some future time. Taking the whole contract together, we think the court was right in ruling that by the contract the plaintiffs agreed to furnish the defendant with one hundred barrels of Bourbon whiskey, to be distilled in November, 1881; and in declining to rule that, as no tender of warehouse receipts was shown to have been made in November, 1881, the plaintiffs were not entitled to recover. The plaintiffs had the entire month of November for having the whiskey made, and some of it appears to have been made the last day of the month; but it was all in the distillery bonded warehouse, for the account, and subject to the order, of the defendant in that month. As the whiskey was in Kentucky, and the defendant in Boston, the parties could not have expected that receipts for whiskey made the last day of the month could have been tendered to the defendant in that month. The defendant’s unconditional refusal to one of the plaintiffs, on the first day of December, to take the whiskey, excused the delay, if there was any unnecessary delay' in tendering the warehouse receipts. The court properly refused to instruct the jury that the tender by the plaintiffs of the goods mentioned in the warehouse receipts was not a tender of the goods contracted for; and rightly instructed the jury that, if the goods made and offered were what is ordinarily known as Bourbon whiskey of E. L. Miles & Co.’s manufacture, it would be immaterial that they were also designated as “ Fire Copper Bourbon.” Under the statutes of the United States, only whiskey of the manufacture of E. L. Miles & Co. could have been in the warehouse. [132] There is nothing in the bill of exceptions to indicate that the decision of the court in the case of Cochran v. Ripy, 13 Bush, 495, was not properly put in evidence. By the Pub. Sts. c. 169, § 72, it was admissible as evidence of the unwritten or common law of Kentucky. It decides questions both of common law and of the construction of statutes. The question of the construction and effect of that opinion was for the court alone; Kline v. Baker, 99 Mass. 253; and it does not appear that any instruction was given to the jury as to the laws of Kentucky in relation to warehouses or warehouse receipts, or that those, laws had any bearing upon any question raised in this case. Apparently fche introduction of this evidence was entirely immaterial, and nothing is stated to show that the defendant could have been in any way prejudiced by it. Judgment on the verdict.