Sellers v. Arie

Rothrock, C. J. I. The petition is in two counts. In the first count it is alleged that defendant sold intoxicating liquors to one V. Sellers, between April 1, and May 5,1898, for which said Sellers paid to the defendant the sum of two hundred and twenty-three dollars and fifty cents, and assigned his right to 516 recover said money back, to the plaintiff. It is averred in the second count that the partnership firm of Sellers & Coats paid the defendant the sum of one thousand, one hundred and eighty-eight dollars and fifty cents, for intoxicating liquors sold by the defend- and to said firm, between the first day of June, 1898, and the fifteenth day of January, 1894, and that said firm and the individual members thereof duly assigned their right to plaintiff to recover the said money back from the defendant. It is further averred that demand was made for the re-payment of said sums of money upon the defendant before the commencement of this suit. It is alleged that all of said sales of intoxicating liquors were made in violation of law. The defendant, by his answer, denied that plaintiff was the owner of the account sued on, and denied that the assignment thereof invested plaintiff with the right to maintain an action thereon. The answer contained further averments as follows: “And, further answering, the defendant says that he was from the 1st day of April, 1893, to the 15th day of January, 1894, acting as agent of the Anheuser-Busch Brewing Company, of St. Louis, Missouri, in the city of Boone and vicinity, for the sale of beer in said corporation; that said defendant entered into a verbal contract with the assignor of plaintiff and one James Coats, who were doing business at said time under the firm name of Coats & Sellers, to sell said firm beer; and that said beer was to be sold in violation of law; and that, as a part of the essential element of said agreement to sell, the defendant agreed to protect said firm from prosecutions that might be brought for the violation of law in the sale of said beer; and that said contract' was, as agreed, two dollars and fifty cents per keg, for the beer and protection as aforesaid; and that such agreement was made with said firm of Coats & Sellers, also with said Sellers and said Coats individually.” It will 517 be observed from this last part of the answer that the sales of intoxicating liquors were made in violation of law, and for the purpose of enabling the purchasers thereof to unlawfully resell the same. The jury returned a verdict against the defendant for the sum of three hundred dollars. The evidence shows beyond all question that plaintiff’s assignors paid to the defendant, at least, the amount of the verdict for intoxicating liquors purchased from the defendant; and, although some question is made by the defendant whether a demand of repayment was made before, suit brought, it conclusively appears from an additional abstract filed by the plaintiff that demand was made within the proper time. ■ 1 II. Section 1550, of the Code, provides, that “all payments or compensation for intoxicating liquor sold in violation of this chapter, whether such payments or compensation be in money, goods, land, labor, or anything else, whatsoever, shall be held to have been received in violation of law, and against equity and good conscience, and to have been received upon a valid promise and agreement of the receiver, in consideration of the receipt thereof, to pay on demand, to the person furnishing such consideration, the amount" of said money, or the just value of such goods, land, labor, or other thing. * * The defendant made the question on the trial, and urges it upon this appeal, that the plaintiff has no right to maintain the action, because the claim is not assignable, so that an action will lie in the name of the assignee. It is said that, under the statute, payment shall be made “to the person furnishing such consideration.” The thought of counsel is, that because the obligation is purely statutory, and is not an open account or claim, founded upon an agreement, payment cannot be demanded, nor enforced, by an assignee; and it is further urged, that the statute 518 is penal, that the claim is in the nature of a penalty or forfeiture, and is not assignable. Whether a penalty or forfeiture, provided for by statute, is assignable, we need not determine. The statute under consideration plainly provides, that the money paid for intoxicating liquors shall be held “to have been received upon a valid promise and agreement of the receiver to pay it on demand.” The claim is thus put upon the same ground as any other valid promise to pay, and it is assignable, the same as any other lawful demand or chose in action, which “is a right to receive or recover a debt, or money, or damages, or for a tort, connected with contract, but which cannot be enforced without action.” 1 Bouvier’s Law Dict. 265. And a chose, or thing in action, is assignable in this state. Code, section 2546. 2 III. The court instructed the jury, in substance, that, under the statute upon which the action is founded, the defendant was liable if he sold the intoxicating liquors, and received the money therefor, even though he acted as the agent of another. It is urged that this was error. We do not concur in this view. The defendant, as.is shown by his »answer, was an active participant in a scheme, not only to violate the law, but to protect the purchasers of liquors from prosecutions that might be brought for retailing said liquors; a]id, in his examination as a witness, he testified on that subject as follows: “I agreed to use my influence to keep them from being prosecuted for violating the law, and spend money to that end. I did not agree to spend any specified amount, — just liberal. I never told them to whom I would give money. I hired detectives. I never paid any money to any county officers. I gave someto the ministers; someto Mr. Randall,Baptist minister,some to the Methodist church, some to the Presbyterian' church. I simply talked with the ministers, and 519 explained to them the law; talked to them to keep them in good humor, to keep them in good shape, with everybody. I never kept any account of the money expended. The money was mostly Anheuser-Busch money. I never charged them anything. They gave me thirty per cent, for doing business. The first time it was thirty per cent., and after was thirty-five. The expenses used to be a little high. After they gave it to me, it was mine. It was taken out of the total receipts, and I paid my own expenses out of that,— paid for protection out of that.” It is hardly necessary to say that the defendant is in no position to claim exemption from liability to repay the money which he received. The judgment of the district COUrt ÍS AFFIRMED.