Shiretzki v. Julius Kessler & Co. , 147 Ala. 678 ( 1906 )

DOWDELL, J.

The 4th plea of ’the defendant was subject to the demurrer interposed to it. The alleged fraudulent misrepresentations set up in the plea as having been made by plaintiff’s, agent, cannot be consi dered as anything more than the expression of the agent’s opinion. It is insisted that the plea is good as setting up the defense of a failure of consideration, but we think it is faulty and defective as such. It admits that the note sued on was given for whisky sold by plaintiffs to the defendant. The consideration was the Avhisky sold and purchased, and it is not denied that it had value. The fact that it was not such as to meet the demands of the defendant’s trade, as represented by the plaintiff’s agent it would do, would not amount to a failure of consideration. There was no error in sustaining the demurrer to this plea. ■ The 5th plea alleged that the note sued on was an Alabama contract, and was given for the purchase price of whisky, and that the same was vend for' the reason that the plaintiff had not paid for and ob-’ tained a license for the sale of whisky as required by law. The plaintiffs replied to this plea, in substance, that the whisky when sold was not in the state of Alabama, but was in the state of Kentucky, and was to be delivered to the defendant in the future in that state. The defendant demurred to the replication and the demurrer was overruled.

Section 3524 of the code of 1896, provides, “AH sales, or contracts or agreements to sell or exchange spirituous, ’ vinous or malt liquors, are void, if the seller or party making the exchange has not a license authorizing him to engage in business as a retailer or wholesale dealer.”

This statute has no application to a sale of, or contract to sell, spirituous liquors, under the facts set forth in plaintiff’s replication to- defendant’s plea. The demurrer to the replication was, therefore, properly overruled. We ñnd no error in the record, and the judgment appealed from must be affirmed.

Affirmed.