Jones & Tibbets v. Hard

Barrett, J. The original negotiation for the purchase of the liquor charged in the plaintiffs’ account failed of becoming perfected into a sale by reason of the failure of the plaintiffs to forward it in compliance with their agreement. It had been forwarded to the defendant’s address by the mark agreed upon, but was directed to a wrong town. For this reason it failed of going seasonably hito his hands. When it became known by the plaintiffs that the defendant had not received the liquor, and that he declined to receive it because it had not come to him within the time agreed, they requested him to seek for and find it, and — 487 — take it home, and, if he did not want it, to keep it till one of the plaintiffs should visit his place, when they would pay him- all charges aud make it satisfactory. In pursuance of this request, the defendant found the liquor and took it home and put it into his cellar, and informed the plaintiffs that he had so done by letter dated December 80, 1852, adding- “ if the freemen of Vermont should adopt and confirm the liquor bill of the last legislature of our State, referred to the people for their approval or disapproval, I should think you had best to claim it as your property, if I should think best to use the same.” Thereupon the liquor remained till the 5th of May, 1853, when one of the plaintiffs went to the 'defendant aud arranged for a settlement of the defendant’s charges, by offseting the value of some of the liquors from the casks that the defendant had in the mean time drawed out and sold. The residue was left with the defendant as the property, and subject to the future orders of the plaintiffs. The balance due to the defendant was to be adjusted when the liquor thus left with him should be disposed of by the plaintiffs, or returned to them. On the 27th of June, 1853, the plaintiffs wrote to the defendant concerning- said liquor, and in a postscript said, “ We should be glad to sell you the liquors if you think you can dispose of them.” To this the defendant replied by letter dated June 30th, 1853, in which he professes to understand that the liquor had been sold to him by virtue of what had theretofore transpired, and expresses surprise that they should be calling on him to ship the same to their place, and closes the letter in an obscurity of expression quite wide from frankness, even if it can l e regarded as consistent with honesty. The plaintiffs answered this letter, saying that they had been looking for the liquor, but it had not come, and requesting that if he had not sent it, he would do so at once, “ and write by mail'the name of the line and boat, unless he wanted to keep it and pay for it as per bill.” To this letter of tne plaintiffs the defendant made no reply* It appears in the case that the defendant had sold out all the liquor prior to sííhtá'Oth daj’-. of June, and taken pay for it. The foregoing letters show that the idea of a purchase of the liquor,was in consideration by both parties ; the plaintiffs prof — 488 — fering the sale if the defendant should choose to buy; the defendant by his letter of June 30th, professing to understand that the liquor had been sold to him. In addition to which is the fact that between, the 5th of May and 30th of June, the defendant had treated the property as his own, having sold it out by the glass and received therefor something more than the price which the plaintiffs have charged him for it. We think these facts must be regarded as constituting a purchase of the liquor by the defendant of the plaintiffs “as per. bill,” that had been furnished about the time the liquor was forwarded from New York. The defendants assuming to use the liquor as his own, in accordance with the plaintiffs’proffer to sell it to him, should entitle the plaintiffs to treat and hold him as a purchaser. His conduct was entirely inconsistent with the idea that he regarded himself as a mere bailee for the safe custody and return of the property to the plaintiffs, and is only consistent with the fact of his regarding himself as a purchaser in pursuance of the proffers of the plaintiffs, unless we are to presume that he designed to embezzle and cheat the plaintiffs out of their property, which, perhaps, might not be regarded as a very violent presumption in the present case. It is to be noticed that the defendant has never denied his having purchased the liquor. In his last letter to the plaintiffs he professes to have understood that he had bought it. In the interview in February, 1856, between the parties, the defendant claimed that if he had ever had any liquor of the plaintiffs he had paid for it, but as the auditor adds, “he admitted nothing.” Conformably to this claim, if the defendant did have the liquor of the plaintiffs, it was upon a purchase, as is conclusively implied by the alleged fact of having paid for it. In the position thus assumed by the defendant the plaintiffs proved that the defendant did have the liquor. This left the parties standing upon the question, first, had the defendant paid for it ? The auditor has found that he had not, but that the defendant had a charge of eight dollars and seventy-eight cents for services and freight paid, which the plaintiffs were willing should be applied towards payment for the liquor. Second, is the defendant liable to pay for it ? — 489 — ■ The liquor had been sent into the State for the purpose of being sold. It came into the hands of the defendant as bailee, with the right to keep it as a purchaser, or to return it to the plaintiffs upon their order. The defendant chose to keep it as upon a purchase. The sale and delivery must be regarded as having taken place in Vermont. The terms were proposed by letters addressed to, and received by, the defendant in this State. His acceptance of the proposition to purchase was by acts done in this State, as well as the delivery and acceptance of the liquor itself, by which the sale and passing of the title were consummated. Such sale was made contrary to the terms of the statute of this State, and with knowledge, on the part of the plaintiffs, that the purchaser designed to use it in violation of the law. Hence, within the principle of many decided cases, as also by the express provision of the statute of 1852, prohibiting the sale of intoxicating liquors, the plaintiffs are not entitled to recover pay for said liquor unless the transaction is saved by the statutory exemption or otherwise. To this end the plaintiffs invoke the principle established in the case of Brown v. State of Maryland, 12 Wheat. 409, which has been reasserted and applied by the United States supreme court, in the case of Thurlow v. Massachusetts, Fletcher v. Rhode Island, Pierce et al. v. New Hampshire, 5 Howard 504. The auditor finds that the plaintiffs imported both the gin and the brandy; that the gin was not sent forward in its original package, but that the brandy was, and came into the defendant’s hands in that condition, and that it was imported conformably to the laws of the. United States. Our statute of 1852, section 12, expressly recognizes the efficacy of the laws of congress under the constitution, to exempt liquor in the condition of the brandy, when it came into the defendant’s hands, from liability to seizure and confiscation. We think it is fairly to be implied that the legislature designed to leave such exemption to be operative to every legitimate intent, and thus to permit liquors in that condition to be the subject of lawful sale by the lawful owners thereof. Regarding this view to be well grounded, we prefer to avail ourselves of it in disposing of this ease, rather than to enter upon the question of the constitution — 490 — ality of our statute, so far as its prohibitory and penal provisions might be claimed to apply to the sale of all intoxicating liquors; The cases above cited would seem to be conclusive upon this subject if it were necessary now to pass upon it. In our opinion the gin, in the condition in which it came into the defendant’s hands, was not within the exemption, and therefore, by reason of the purpose for which it was sent into the State, was contraband, and the sale of it to the defendant was a violation of our statute. The cases cited from 5 Howard so decided. On the other hand we regard the brandy, in the condi-> tion in which it came into the State and went into the hands of the defendant, to have been the subject of legitimate sale, with which our statute was not intended to interfere. Hence, in our opinion, the plaintiffs are entitled to recover for the brandy the price found by the auditor. While the view thus taken seems to be sound, it is the only one on which the plaintiffs’ right of recovery can be maintained. If it were to be held that the defendant was mere bailee, and as such wrongfully converted the liquor, then the plaintiffs’ right to recover would rest on the ground of waiving the tort, and treating the defendant as their agent in selling out the liquor with full authority thus to do. If this fiction should be adopted, it would be difficult to avoid the consequences flowing from the illegality of such sales as the defendant made of the liquor. If the plaintiffs were thus to subject themselves to the charge of having sold the liquor in violation of the statute, they would fall under the provisions of the 21st section, and thereby be precluded from recovering the price of the liquor thus wrongfully sold by the defendant. This principle is familiar, and its application to this case would not be doubtful. See Backman v. Wright, 27 Vt. 187. It will be kept in mind that the sale of liquor within this State can be protected only while it is passing in the original package of importation, in such quantity as is prescribed by the laws of congress regulating its importation. Conformably to the views thus presented; the plaintiffs are entitled to recover for the brandy, deducting the four dollars and fifty-three cents, and adding interest to September 30, 1859, the sum of eiglity-two dollars and fifteen cents. We are disposed to regard the rest of the defendant’s charge as — 491 — fairly satisfied out of the money he got for the gin that he refuses to pay for. The judgment of the county court is therefore reversed, and judgment is to be entered in this court for said eighty-two dollars and fifteen cepts, with interest to be computed from the 80th of September, 1859j