Sommer v. Cate

Cole, J. [586] 1. Intoxication liquors: action for value: onus. [585] The petition alleges that the defendant was acting as a drayman and common carrier of goods, etc., [586] ™ -^es Moines; that the defendant agreed, with the plaintiff, for a sufficient consideration, to carry} for the plaintiff, a barrel of whisky from the court-house to the Des Moines Yalley railroad depot in said city; that defendant received said barrel of whisky for the purpose of carrying the same; that defendant failed to deliver the same at said depot, or to return it to plaintiff, though demanded; that it was worth two hundred and fifty dollars, for which he asks judgment. The defendant demurred to the petition, because it appears therefrom, that the action is instituted to recover the value of intoxicating liquors, but the jietition does not allege that the plaintiff owned or possessed such liquors with lawful intent. The court sustained the demurrer, and the correctness of this ruling is the only question presented for our determination. It is provided by our act for the 'suppression of intemperance, among other things, as follows: “ Nor shall any action be maintained for the recovery or possession of any intoxicating liquor or the value thereof, except in cases where persons owning or possessing such liquor with lawful intent may have been illegally deprived of the same.” Rev., § 1571. Giving to this enactment a fair construction, it devolves upon a party suing to recover the value or possession of intoxicating liquors, the burden of proving not only that he had been illegally deprived of the same, but also the further fact that he owned or possessed them with lawful intent; that is, that he did not hold or own them for the purpose of sale in violation of law. Such being the case, it is necessary for the party thus suing to aver such fact; for it is a general rule that a plaintiff need not prove more in order to maintain, than he is required to aver in order to state, a cause of action. It follows, therefore, that the plaintiff ought to aver in his petition, as he must ■ [587] prove oil the trial, his ownership with lawful intent, and that the demurrer was properly sustained. This precise question was not presented, either by the pleadings or arguments of counsel, to, nor determined by, this court in the case, referred to by counsel for appellant, of Bowen & King v. Hale (4 Iowa, 430). Nor has it been presented or determined in the cases cited by appellee’s counsel, of Funk et al. v. Israel, 5 Iowa, 438; Plummer v. Harbut et al., 5 Id., 308; Davis v. Bronson, 6 Id., 410; Marienthal et al. v. Shafer, 6 Id., 223; Davis v. Slater, 17 Id., 250. But see these cases as sustaining the holding in this. Affirmed.