Kelly v. Burke

TYSON, J. — The complaint originally contained one count for goods, wares and merchandise sold by plaintiff to defendant. 'The action was begun against J. A. McMinn, but after it was instituted, the defendant, upon inquisition, was adjudged insane and Burke appointed his guardian. Burke, as guardian, appeared and defended and there was a judgment in his favor, from which the plaintiff prosecutes this appeal. Plaintiff amended his complaint by adding counts 2, 3, 4, 5 and 6. A demurrer was-sustained to counts 2,-3 and 4. Neither of these counts stated a cause of ac; tion. They aver no promise to plaintiff by def endant to pay for the value of the goods alleged to have been delivered or received by defendant; nor are sufficient facts alleged out of which an implied promise arose.—Chickering v. Bromberg, 52 Ala. 528. There was, therefore, no error in sustaining the demurrer to each of them. [242] It appears from the bill of exceptions only that plea 4 was offered to be amended, but that the court refused to allow the amendment to be filed. The amendment offered did not cure the defect in the count. While this ruling of the court is assigned as error, it is not insisted upon in argument. With these counts properly eliminated, the cause was tried upon counts 1, 5 and 6. The first two were for goods sold and the last for money had and received. A number of defenses were interposed. Among these defenses was one that the money sought to be recovered was the price of spirituous, vinous and malt liquors sold in violation of law. Section 3524 of the Code makes all sales of spirituous, vinous or malt liquors to a person of unsound mind, without the consent of the parent or guardian of such person, void. Section 5079 of the criminal Code makes it an offense for any person to sell such liquors to a person known or reputed to be of unsound mind, unless it be upon the prescription of a physician or with the consent of the parent, guardian, husband or wife of such person. If McMinn was insane at the time of the alleged sale of the whiskey ¡to him and there was no consent given by the persons authorized to consent and no prescription of a physician, the sale was void, not only on account of being positively declared so by section 3524, but on account of being opposed to public policy. Such contracts cannot. be ratified or confirmed by subsequent acts or agreements of the parties. The sale being void an action will not lie to recover the price.—Moog v. Hannon, 93 Ala. 503. Nor is it of consequence that the ward’s estate got the benefit of the transaction by a resale of the whiskey and the appropriation of its proceeds.—Bluthenthal & Bickert v. The Town of Headland, 132 Ala. 249. So, too, it is of no consequence that the ward did not offer to return the whiskey during his lucid interval, if he had one. This he was not hound to do, since the sale was void, and incapable of ratification. Nor was it of any moment that the whiskey was sold by plaintiff to be resold in the ordinary course of business and not to be drunk by McMinn. No such exception is [243] found in tlie statutes and we have no authority to en-graft it. And such exception cannot be introduced by way of construction since tbe language employed in these statutes is plain and unambiguous. Where this is the case neither the history of these statutes nor the mischief intended to be remedied can be looked to for the purpose of qualifying or otherwise defeating their plain mandate. In The State ex rel. v. McGough, 118 Ala. 166, after recognizing broadly the rule of construction' so as to give force to the intention of the legislature by reference to the history, the causes leading to the adoption of the statutes and the evils intended to be remedied by them, it was said: “But there are other rules of interpretation that may override all others, as when a law is plain and unambigious, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Possible or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere.” See also Ex parte Mayor, etc. of Florence, 78 Ala. 419. We have but to apply these principles to the demurrers interposed to the plea invoking this defense -and to the replications thereto, to which demurrers were sustained, to see the correctness of the rulings of the court in overruling the former and sustaining the latter. The only replication left to the plea setting up the defense above -considered, was the'one numbered 9. That replication alleged that the sale of the whiskey by plaintiff was made in the State of Tennessee, to be resold by defendant as a retail liquor dealer at Cullman, Alabama; that plaintiff did not know of McMinn’-s insanity and that the sale was in good faith, without fraud or imposition, for a fair consideration, and that s-ai-d sale had been so far executed that the parties thereto could not be restored to their original position. Issue was joined upon this replication. The evidence undisputedly, and without adverse inference to the contrary, shows that when the whiskey was bought by T. D. McMinn, a son of J. A. McMinn, the lunatic, the father was in -a hospital in Cincinnati and insane; and that it was bought a/ucl [244] delivered in Oullman. Furthermore, the evidence shows undisputedly, that the salesman, when he made the sale to young- McMinn, was informed by the latter that his father was insane and in Cincinnati for treatment. This latter evidence, however, was objected to and it is insisted that its admission was error. We are unable to perceive any merit in the objection. The salesman for plaintiff was engaged in making the sale when he received the information and the information imparted to him was of the highest importance, since it involved, not only the right of young McMinn to make a contract which would hind his father, but also the want of mutuality in the engagement upon which the salesman of plaintiff was about to enter for his principal. — Birmingham Trust & Sav. Co. v. La. Nat. Bank, 99 Ala. 379; 1 Am. & Eng. Ency. Law, (2d ed.), 1144 and note 1. The theory of plaintiff’s objection is that the evidence does not disclose that Lowrey, the salesman, had authority to represent him, and therefore notice to Lowrey of McMinn’s insanity was not notice to him. This is unsupported by the record Lowrey took the order for the sale of the whiskey, made the contract for its sale, and plaintiff delivered it. The evidence having established without dispute the defense set up in the fifth plea and having disproven, without dispute or conflict, the ninth replication thereto, the court properly gave the affirmative charge for the defendant. The exception reserved by plaintiff to the sustaining of defendant’s objection to the question propounded to witness Burke, if. error, was without prejudice, since the manifest, purpose of it was to show ratification by J. A. McMinn of the sale of the whiskey-. So, too, if (there was error committed by the court in overruling the demurrers of plaintiff to special pleas 3 and 4 or in sustaining demurrers to the replications to those pleas, it was without injury. We are not informed by the record at what stage of the trial ithe plaintiff offered to file the replication to plea 5 that “said goods were sold in Chattanooga, Tenn." The recital is, “after the court had sustained the defendant’s demurrers to the plaintiff’s replications and plaintiff [245] bad refused to plead further, plaintiff asked leave of ifche court to file a replication to plea 5,” etc. All this may be true, and yet the request to file this replication may have been made after the evidence had been introduced showing the sale to have been consummated in Oullman and not in Chattanooga. If this was true clearly the court committed no error in its refusal. And in the absence of an affirmative negation in the record to the contrary, we must indulge the presumption that this was true. Error must be affirmatively shown and until so shown we must presume in favor of the correctness of the ruling of the trial court.—3 Brick. Dig., 406, § 40. Aside from this, the fact of sale in Chattanooga was averred in replication numbered 9 upon which issue was joined, and as we have said, the proof shows undisput-edly that the sale was made in Cullman. So then, it can be said that no injury resulted in the court’s refusal to allow the filing of this replication. It may be well, in conclusion, to notice briefly the contention of appellant that the transaction cannot' be affected by the statutes referred to above because the same was made to T. D. McMinn and not to J. A. Mc-Minn, the lunatic. Accepting the correctness of the contention, then the plaintiff must fail for the obvious reason that he sold no goods to defendant’s ward, and, therefore, there is no liability for the price or for. money had and received. The whiskey was either sold ito J. A. McMinn or it was not. If sold to him his estate is not liable for the reasons stated above and if it was not sold to him, but to his son, then his son alone is liable. Affirmed.