Whitlock v. Workman & Co.

Lowe, J.— On the trial, exceptions were taken in the matter of refusing to give, and giving, certain instructions to the jury, and the overruling the motion for a new trial. The ground of this motion was, that the verdict is against the evidence and the law of the case. The testimony, as a [354] whole, admits of but one construction in respect to the place where the contract was made, and that is, that it was entered into and consummated in the,city of New York. The circumstance that some seven months or more after the sale and delivery of these goods, notes were signed in this State as evidence of the indebtedness, does not alter the case or change the place of the contract. The delivery of the goods to the transporting agents in the city of New York, was a delivery in contemplation of law to the defendants. If this is not so, why did they pay the cartage, the insurance for the safe transportation, and all the other charges of affreightment. (1 Pars. Cont., 440-443; Story Sales, §§ 288, 289; Story Cont., §§ 599, 800-805; Addison Cont., 242,243.) But it is claimed, as a matter of defense, that plaintiffs sold these liquors to defendants with the intent to enable them to violate the law of this State passed for the suppression of intemperance. In the case of Daller v. Laue & Guye, 13 Iowa, 538, we held, substantially, that such a defense was available in law against a foreign vendor of intoxicating liquors; but that the allégation of -such a purpose, on the part of the vendor, at the time of sale, must be supported by some evidence tending to establish its truth. The evidence in support of this allegation in the case at bar is to be found, if at all, in the testimony of defendant, Workman, and his partner, Fairall, who were the only witnesses that testified for the defense; and it is somewhat remarkable, in view of the character of the verdict, that they state no fact or circumstance tending, directly or indirectly, to show that a violation of the temperance laws of this State, was within the contemplation of the parties before or at the time of the sale of said liquors, or that the slightest allusion was at the time made to said laws,' or any other fact - showing that it was the purpose or intent of the plaintiffs to enable defendants to violate said [355] laws', or that the plaintiffs even had any knowledge of the existence of said laws. It is true, these witnesses testify that the plaintiffs knew that the defendants resided in Iowa, and that the liquors sold would be taken to Iowa and resold; but this, without more, amounts simply to nothing. The sale of liquors in Iowa for some purposes is lawful under the act in question, and a foreign vendor of this article of merchandise cannot be implicated in the charge of an intent to enable the purchaser to violate the liquor law, without some evidence that he knew how and for what purpose these liquors were to be sold in this State. But in addition to the absence of any affirmative evidence to sustain the defense pleaded, one of the plaintiffs testifies positively that “at the time of the sale to defendants, neither he nor any member of his firm had any knowledge or information of the existence of any law in the State of Iowa prohibiting the sale of intoxicating liquors, or of any law in that State upon the subject,” and this statement is nowhere contradicted. Now, in this state of the evidence, it is quite inconceivable upon what ground the jury found a. verdict for the defendants, and we-are forced to the conclusion that it is our duty to order a new trial, for the reason that there seems to have been no adequate testimony to authorize the verdict. In regard to the instructions asked by plaintiffs, we suppose the court did not refuse them because they fail to state in the abstract correct principles of law, but it may be because they propounded some principles which the state of the case, as shown by the evidence, did not call into requisition, and therefore it is, we presume, that the court deemed it expedient to supply its own instructions, but the manner in which it did this was well calculated to mislead the jury, and in a large degree accounts for the character of their verdict. The court say, “if, at the time [356] of tbe sale of the liquors, it was agreed by tbe parties, that the goods were to be shipped to defendants at Iowa City, Iowa; that on and after their arrival (and not before), defendants were to execute their notes for the amount of the purchase, including the liquors and other goods, and that the notes sued on in this action are notes made in pursuance of such agreement, then the plaintiffs are presumed to contract with a knowledge of the laws of Iowa. If, on the other hand, the sale was completed in New York, without anything left to be done to complete a sale and delivery of the liquors, the plaintiffs will not be presumed to have knowledge of the laws of this State,” &c. This charge is somewhat vague, and howevér it was intended to be understood, it is susceptible of the meaning that it is the execution of the notes, and not the sale and delivery of the goods, that determines the place of the contract. This is a misconception. The evidence before us shows beyond a doubt that this was a New York contract; that the sale and delivery of the goods took place there; that they were shipped at the risk and expense of the defendants, and could have been attached as their property any time after the delivery of the same to the carriers at New York, and if the notes had never been executed, it would not in law alter the rights of the parties. It is true, it was competent for the parties to have made a contract, to the effect that the plaintiffs should, at their risk and cost, deliver the goods sold, at Iowa City, and that the defendants should execute and deliver their notes for the purchase money before the title should pass to them. Under such a contract the above charge would have been proper, but under the contract proven, it was erroneous, and calculated to mislead. The cause is reversed and remanded for a new trial. Reversed.