Brechwald v. People

Wall, J. The plaintiffs in error are liquor dealers, doing business in Knox County.) They received orders from Phillips, who was a resident of McDonough County, and on several occasions sent him intoxicating liquors in gallon packages by express, C. O. D. It was alleged that Phillips was a person in the habit of getting intoxicated, and that the sales so made to him were in violation of the Dramshop Act. The prosecution was instituted in McDonough County and resulted in conviction.' The important question presented is whether the sale was made in Knox or McDonough County. When the terms of sale are agreed on and the bargain is struck and everything the seller has to do with the goods is1 complete, the contract of, sale becomes absolute between the -~ parties without actual payment or delivery, and the property and risk of accident to the goods rest in the buyer. A delivery to a common carrier is generally deemed a delivery to the consignee. 2 Kent Comm. 492-496; Wade v. Moffett, 21 Ill. 110; Owens v. Woodman, 32 Ill. 409; Benjamin on Sales, Secs. 1, 181 and 315. When the liquor was delivered to the carrier, nothing'-; remained to be done by the seller — the sale was complete, he retaining merely a lien for the price. The property rested in the buyer, and while he could not obtain possession until he paid the price, his right was perfect to have the property when the price was paid. The vendor could not withdraw from the bargain, and though the value of the liquor might advance he could receive only the price fixed. If there was an accident the loss would fall upon the vendee. In a word, it was his property, subject only to the lion for the price. This view is taken by the Supreme Court of Alabama, in Pilgree v. The State, etc., 71 Ala. 368. Counsel refer to a case in Vermont, and to" rulings of TI. S. Circuit Courts, some of which we have not been able to find, as holding the opposite. Whore the rulings of courts are not harmonious, and the point has not been settled by our Supreme Court, we are at liberty to adopt such rule as to us seems most consistent with sound reason and principle. In our opinion the sale in this instance was made in Knox County, and the prosecution was improperly instituted in McDonough, The judgment will be reversed. Reversed.