Bluthenthal & Bickert v. McWhorter , 131 Ala. 642 ( 1901 )

McCLELLA.N, 'O. J.

If A., doing business and 'selling intoxicating liquors outside of a prohibitory district there sells such liquors to B., knowing that the latter is purchasing them for resale within a prohibitory district, but B.’s purpose in this connection is not carried out and the liquors are not resold in such district, A. may recover the price of the goods from B. Plea 3 fails to aver that the liquors constituting the 'Consideration of the note sued on, or any part of them, were sold by the defendant in the district where the prohibition relied on obtained, and was therefore bad. Mere knowledge on the part of A. in the case supposed, that B. is purchasing the liquors for the purpose of selling them in territory where the sale of 'such liquors is prohibited by law, coupled with the sale of them by B. in such territory, will not suffice to render the transaction between A. and B. illegal. In addition there must be some participation by A. in the illegal purpose and act of B.; and while knowledge of such purpose, coupled with its execution on the part of B. may afford a 'basis for inference of participation on A.’s part, i. e. would be evidence tending to sliow such participation, such knowledge of the proposed illegal act is not of itself that participation in it which will avoid B.’s¡ liability to pay üot A. 'for the liquors. The third plea, therefore, should have averred not only illegal sale by the defendant, but participation by the plaintiffs. — Black Law of Intoxicating Liquors, §§ 269, 270; 17 Am. & Eng. Ency. Law, pp. 312-13. Of course, the averments which we hold were necessary to the third plea, would not have been had the plea averred a sale by plaintiffs to defendant within the prohibited district.

Plea 4 does not bring the sale by plaintiffs to defendant within the terms of the 'Statute intended to be pleaded. It should have been averred that the order taken by plaintiff’s agent within the prohibited district was for liquor “to be shipped or sent into such district.” Foir aught that appears by the plea, except by averment of a mere conclusion that the -order was taken in violation of the statute, the order taken in the district was for liquors to be shipped or sent elsewhere than into the district. This fourth plea is not open to other objections taken by the demurrer. It was not essential to the defense intended to be presented by it that defendant should have sold the liquors so ordered, nor that plaintiffs should have had knowledge that defendant Intended to sell the goods within the district, nor that plaintiffs should in any way have participated in sales by defendant.

The replications of plaintiffs to pleas 2, 3 and 4 were bad, and the demurrer to them was properly sustained. Plaintiff’s rights or want of them is determinable by the laws, common and statute, of the State. If the facts set up in the replication would ever have been of importance, they are not so under the act of 'Congress known as The Wilson Act. — 17 Am. & Eng. Ency. Law, pp. 293, et seq.

The reference in plaintiff’s letter to defendant to the prohibition law of force at defendant’s place of business, viz.: “We notice in the newspapers to-day that the grand jury reported prohibition a failure in your county. No doubt- this will lead to your obtaining a license,” tended to show knowledge on plaintiffs’ part that defendant was selling liquors they were supplying him in violation of law, not only at the date of the letter, but also at the previous time when the liquors constituting the consideration of the note sued on were sold to him; and the court did not err in receiving the letter in evidence.

We deem it unnecessary to discuss the rulings of the court upon requests for instructions: What we have said above will suffice for the court’s guidance upon another trial.

For the errors committed in overruling the demurrers to the third and fourth pleas, the judgment ol the circuit court is reversed. The cause is remanded

Reversed and remanded.