Brooks v. State , 105 Ala. 133 ( 1894 )

HARALSON, J.

If Brooks, the clerk, is guilty, so, under the facts, is Griffin, and vice versa; and whatever James, the partner of Griffin at Opelika, did in this matter, is the same as if done there, by Griffin in person. The act of Griffin & James, in selling the whiskey, was the act of Griffin.—Sellers v. The State, 99 Ala. 75; Perkins v. The State, 92 Ala. 66; Segars v. The State, 88 Ala. 146.

The principle upon which the guilt or innocence of the parties is to be detemined is, whether the sale was made, so as to pass the title to the whiskey, at LaFayette — within the prohibited district — or at Opelika — outside the district. A sale made outside of the prohibited locality, where the liquor is set apart and delivered to the purchaser, or to a carrier for him, passing title, is not within the words or spirit of the statute, as was held in Pilgreen v. The State, 71 Ala. 368. And, as was held in that case, the contract for sale is complete only when the buyer and seller agree ; “the property in the goods then passes from the veudor to the vendee, and the risk of loss by accident, or from any other cause than from the fault or negligence of the seller, is cast on the buyer as an incident of ownership, though actual possession may not pass, and he may not be entitled to it, until he pay the price or perform some other stipulation.”—Parsons on Contr., 525; Brown & Co. v. Adair, 104 Ala. 652.

When, then, under the facts of this case, did the seller and the buyer agree? When did the title to the whiskey pass from the sellers, Griffin & James, to the purchaser, John Smith?

Now, the facts disclosed are, that Brooks, with the knowledge and consent of Griffin, took an order from one John Smith in the store of Griffin in LaFayette, for a gallon of whiskey, directed to Griffin & James — who in legal contemplation were Griffin — and sent the order to said Griffin & James in Opelika, where James drew the whiskey, put it in a gallon jug, tagged it with John Smith’s name, and put it in a box with other jugs sold on similar orders from other persons in LaFayette, and sent it by express to Brooks at grocery store of Griffin in LaFayette, who received it and paid the transportation charges on the box and delivered the jug, tagged for John Smith to him, who paid Brooks the price of the whiskey, for Griffin & James ; and all this was done with the knowledge and consent of said Griffin at LaFayette.

On the legal hypothesis, which must be indulged, that Brooks and Griffin are one, and that Griffin & James and Griffin are one, as to this transaction, the case, stripped of its delusive circumstances, may be stated in this wise : Smith orders from Griffin, doing business at LaFayette, a jug of whiskey; Griffin sends to his own store in Opelika and has it sent to him at LaFayette, at his own cost, and delivers it there to Smith, who pays him the money for it. This is a clear case of a sale at LaFayette. The contract of bargain and sale was not completed, until the delivery to Smith. If the article sold had been destroyed before delivery to Smith, he would not have been liable for it.

The profit from the sale accrued to Griffin. The fact that the whiskey was charged to Smith by Griffin & James, does not relieve the transaction from illegality. That is easily reconcilable as being a mere memorandum, or as a part of a device to circumvent the law. Smith, certain, did not direct it to be so charged. The whole transaction wears the appearance of a shallow effort to do away with the statute prohibiting the sale of liquor within five miles of LaFayette College. (Acts 1890-91, p. 85.) If it were allowed to pass as lawful, Griffin would have, and carry on, a liquor store in LaFayette, despite the statute prohibiting it.

This case is clearly distinguishable from the cases of DuBois v. The State, 87 Ala. 101, and Newman v. The State, 88 Ala. 115.

The judgment of the court below is affirmed.