Williams v. B. A. Feiniman & Co.

The opinion of the court was delivered by Brewer, J.: This case is in all essential particulars similar to that of Haug v. Gillett, recently decided by this court, (ante, 140,) except that in this case the vendor resided and had his place of business outside the state. Feiniman & Co. are wholesale liquor-dealers in Kansas City, Mo., in which place they have paid all taxes required by the state or national authorities for carrying on that business. Their store and stock of goods was in that place, and they had neither store nor stock in this state. The goods for which this action was brought were sold either by orders given to a traveling agent of Feiniman & Co. at the store of plaintiffs in error in Garnett, Kansas, by orders sent by letter or telegram to the house in Kansas City, or by contract made directly between the parties in Kansas City. Where orders were taken they were subject to the approval of the firm in Kansas City, and in all cases the goods were there selected and separated from the stock of Feiniman & Co., and delivered to the carrier in Kansas City. The charges for carriage therefrom were paid by the plaintiffs in error. Clearly, there was no complete sale, no transfer of title to the particular goods, until they had been separated from the entire stock. Before such separation there was at best only a contract to sell. Now the thing forbidden by the dram-shop-act is a sale, not a contract [290] to sell. True, its penalties reach to any gift of liquors, or any other shift or device to evade the provisions of the act; but the case here presents nothing of that nature. It is an ordinary, straightforward business transaction, and if forbidden at all it must be because embraced within the plain prohibitions of the statute. But as we have seen, the_ thing forbidden is a sale, and no sale AVas completed until the goods were separated and delivered to the carrier. It is not claimed that there was any special agreement to deliver the goods at Garnett, and both the partners of Feiniman & Co. testify that they were to be delivered at the depot in Kansas City, and to be thenceforward at the risk of the purchaser. And indeed, it is the ordinary rule, in the absence of any special agreement, that a delivery to the carrier is a delivery to the purchaser, and completes the sale. 1 Pars, on Contracts, 3d ed., 445, and notes; Hilliard on Sales, 118; Smith v. Smith, 7 Foster, N.H., 244; Finch v. Mansfield, 97 Mass., 89; Kline v. Baker, 99 Mass., 253. The judgment therefore must be affirmed. All the Justices concurring.