City of Carthage v. Duvall

Mr. Justice Hand delivered the opinion of the court; It is agreed between the parties that there is but one question presented for decision in this case, viz., do the facts show a sale of intoxicating liquor in less quantities than five gallons by the defendant to Skidmore within the city of Carthage? The determination of that question depends upon whether the title to the liquor vested in Skidmore at Burlington or at Carthage. If at Burlington, the defendant is not liable, and if at Carthage, he is. The general rule frequently announced by this court is, that the delivery of personal property by the seller to a common carrier to be conveyed to the purchaser is a delivery to the purchaser, and that the title to the property vests in the purchaser immediately upon its delivery to the carrier. (Pike v. Baker, 53 Ill. 163; Ward v. Taylor, 56 id. 494; Ellis v. Roche, 73 id. 280.) Whether such rule applies where the property is consigned C. O. D. is an open question in this court, but upon principle and authority, where, as here, everything which the seller has to do with the property has been done at the time it is delivered to the carrier, we see no reason why the title does not vest in the purchaser immediately upon its delivery although it is consigned C. O. D., or why the same rule should not be applied to intoxicating liquor that is applied to other classes of personal property. In several States (State v. O’Neil, 58 Vt. 140; State v. United States Express Co. 70 Iowa, 271; State v. Wingfield, 115 Mo. 428;) the courts hold that the title to intoxicating liquor,. when it is consigned C. O. D., does not vest in the purchaser until it is received, accepted and paid for. The great weight of authority, however, is the other way. (State v. Moffitt, 73 Me. 278; Commonwealth v. Fleming, 130 Pa. St. 138; Pilgreen v. State, 71 Ala. 368; State v. Cart, 43 Ark. 353; Crook v. Cowen, 64 N. C. 743; State v. Flanagan, 38 W. Va. 53.) In the American and English Encyclopedia of Law, after stating the general rule that where personal property is delivered by the seller to a common carrier upon the order of the purchaser the title immediately vests in the purchaser, it is said (vol. 17 — 2d ed. —p. 300): “A somewhat different question is presented when the sales are made C. O. D. There is much diversity of opinion as to whether sales of this character are to be deemed absolute sales on the part of the vendor with a provision for withholding delivery until actual payment, so as to preserve the lien for the price, or only as executory contracts of sale, not completed until actual delivery into the hands of the buyer. In a number of decisions it has been held that for the purpose of determining whether the seller has violated the liquor laws in force where the buyer lives, a sale C. O. D. is not complete until delivery, acceptance and payment of the price by the person ordering the liquors. At least so far as cases dealing with intoxicating liquors are concerned, however, the weight of authority is against the foregoing view, and it is generally held that where intoxicating liquors are ordered to be shipped O. O. D., the sale is completed when the.liquor is delivered to the carrier.” The cases that hold the title to the property vests in the purchaser upon a C. O. D. consignment, place such holding upon the ground that the carrier is the agent of the purchaser to deliver the property and the agent of the seller to collect and return the purchase price, and that the only interest of the 'seller in the property after its delivery to the carrier is a lien for the purchase price. From an examination of the authorities cited in the briefs, and such other authorities as we have been able to find bearing upon the subject, we have reached the conclusion that the sale to ‘ Skidmore was completed when the liquor was delivered to the express company in Burlington, and that no sale of liquor was made by the defendant to Skidmore in the city of Carthage. The judgment of the Appellate Court will therefore be affirmed. Judgment affirmed.