Myers v. Carr

Manning J.: The Circuit Court erred, we think, in finding from the evidence that the liquors were sold to defendant in the city of New York. The letter from plaintiffs to Joslin & Blodgett, of March 15, 1861, relied on to prove a sale, proves a contract for a sale and nothing more. To constitute a sale of personal property there must be an actual or symbolical delivery of the property to the purchaser, or what is agreed upon by the parties, or understood in the course of trade, to be a delivery. The right of property must pass out of the vendor into the vendee, which is not the case where something remains to be done by the vendor before the delivery can take place. The letter to Joslin & Blodget was not an order on them for the delivery of the property to defendant. Had it been so intended by the plaintiffs, it would have been delivered to defendant, and not inclosed in an envelope and directed to them as plaintiffs’ agents. The object of the letter was to inform them of the agreement plaintiffs had made with defendant, and to request them to carry it out by ascertaining the amount that would be due them, receive defendant’s note therefor, and forward it to them. Defend [70] ant was to be allowed for any excess of outage over the original outage. That is, as explained by the evidence, u leakage, shrinkage.” Until this was - ascertained, the amount of the note to be given could .not be known, nor the delivery take place. Suppose, while defendant was on his way from New York, the liquors had been destroyed by fire, would the loss have fallen on him? Suppose Messrs. Joslin & Blodget had refused to deliver them; could he have maintained replevin or trover for them? We think not. The contract to sell was made in the city of New York, but the sale was consummated in Michigan. The objection to the evidence to prove that the note was given for intoxicating liquors was not well taken. In assumpsit illegality of consideration between the original parties to a promissory note, may be given in evidence under the general issue. If notice of the defense was necessary, we think the notice given was sufficient, according to the decision of this Court in Rosenbury v. Angell, 6 Mich. 508, in which it was held that a notice that apprised the plaintiff with sufficient certainty of the defense to prevent his being taken by surprise on the trial, was sufficient. A still. further objection is, that the evidence does not show that plaintiffs were not within the exceptions of the statute, which must be proved, it is said, to show the illegality of the consideration of the note. The language of the statute is, “That no person shall be allowed to manufacture or sell, at any time, by himself, his clerks, servant Lor agent, directly or indirectly, any spirituous or intoxicating liquors, or any mixed liquors,' a part of which is spirituous or intoxicating, except __ cider, beer, and wihe of domestic manufacture, and except also as hereinafter specified.” Comp. L. §1661. By a subsequent section, sellers of drugs and medicines whose sole or principal business is the selling of drugs and medicines, on giving [71] a bond to tbe People of the State, &c., are allowed to sell spirituous or intoxicating liquors to be used as a medicine, or as a chemical agent in scientific, mechanical or manufacturing purposes, and wine for sacramental purposes: §1672. And the statute is not to apply to liquors imported under the laws of the United States and sold in the original packages in which they were imported: § 1678. The position of the plaintiffs is, that these several provisions of the statute must be negatived by proof to establish the defense. In declaring on a statute, where there is an exception in the enacting' clause, the pleader must negative the exception; but where there is no exception in the enacting clause, but an exemption in a proviso to the enacting clause, or in a subsequent section of the act, it is matter of defense, and must be shown by the defendant. Attorney General v. Oakland County Bank, Walk. Ch. 90; Teel v. Fonda, 4 Johns. 304; Hart v. Cleis, 8 Johns. 41 ; 3 Johns. 438; 1 Johns. 513. An exception excludes in express terms the thing excepted from the statute — leaving it as before the statute. A proviso only exempts a thing within the statute from its operation in certain circumstances, or on certain conditions. The word except is not necessary to Greate an exception, nor the word provided an exemption. Other words clearly indicating the one or other intention are sufficient. Cider and beer are excepted from the statute, wines are not. They are included in the words spirituous or intoxicating liquors. Wines of domestic manufacture, and imported liquors in the original packages in which they were imported, are exempted from its operation. All sellers of drugs and medicines are within the statute, while those only are within the exemption who are mentioned in § 1672. We must understand the statute as if it read, except cider and beer; provided wines of domestic manufacture, and imported and other liquors may be sold as hereinafter [72] provided. It was for plaintiffs to bring themselves within the exemptions of the statute, and not having done so, the judgment of the Court below must be reversed, and judgment be entered for defendant, with his costs in both Courts. Christiancy J. concurred. Campbell J. I am not entirely satisfied that, under our liquor law, the burden of proof is in general on the seller, to make his sale out to have been legal. I therefore abstain from giving an opinion upon that point, as it is immaterial in the view I take of this case. I think that, on the facts, the sale must be regarded as subject to the laws of Michigan. The proof shows the liquors had been sent here previously, to be sold by local agents, and of course to be sold in this State. They were to be delivered here, and whatever contract was made between Carr and plaintiffs was knowingly made with the design that he should receive the property where it then was. I do not, therefore, consider it important whether the title absolutely passed in New York by the contract or not (although I think it did not); for it was made with a direct view to take practical effect in Michigan, and the liquor as before mentioned had been introduced into the State for the purpose of such a transfer. The evidence showed that plaintiffs resided out of Michigan, and therefore negatived the idea that they could be qualified to sell here, as druggists or otherwise, under our statutes. It also showed the liquors to be in part spirits, and even if the sale had been in part of domestic wines, the sale of spirits would vitiate the contract unless that too was lawful. The only lawful sale of spirits, except by qualified persons, must be of imported liquors [73] in the original package. The burdenc of proving their imported character is laid expressly on the seller, and no. proof was introduced on the subject. I concur, therefore, in giving judgment for defendant. Martin Ch. J. concurred with Justice Campbell.