State v. Zermuehlen , 110 Iowa 1 ( 1899 )

Given, J.

There is no- dispute but that during the time ¡alleged, namely, from July 1 to September 2, 1898, the «defendant Zermuehlen did keep a place for the sale of intoxicating liquors in the city of Crestón, on the premises 'described, and sold such liquors- therein. It appears that ■on the 14th day of March, 1898, the firm of Ohlschlager & 'Co-., composed of William .F. Ohlschlager and Wm. Zermuehlen, filed a written consent o-f the resident freeholders ■owning property within fifty feet of said place with the board of supervisors of the county and the city council of Crestón, «consenting “that said Ohlschlager & Co. may engage in and -carry on such traffic on the premises herein above described, -subject to all the provisions of an act entitled ‘An act to fax the traffic of intoxicating liquors and regulate and control ¡the same.’ ” Therewith they filed a “list of names of all persons employed in and about the saloon or place occupied ¡by Ohlschlager & Co. for the sale and keeping for sale of intoxicating liquors,” giving the names of said partners and M. A. Stevens. This list was certified as correct- by 'Ohlschlager & Co. They also filed a bond, wherein W. F. ■Ohlschlager and William Zermuehlen are named as prin«cipals, and others as sureties, conditioned that “if the said W. F. Ohlschlager and Wm. Zermuehlen shall well and ■.faithfully observe and keep all the provisions of the said law, .and shall well and truly pay any and ¿11 damages that may iresult from the sale of intoxicating liquors upon the premises above described, as provided by said law, then this obligation shall be- null and void, otherwise the same shall be sand remain in full force and effect.” This bond is signed: irW. F. Ohlschlager. Win. Zermuehlen,” — and by the sureties. About the first of July, 1898, the defendant Weiss had negotiations with W. F. Ohlschlager for thei purchase of his interest in the property and business of the firm; but we are .satisfied that these negotiations did not result in an agreement, and that Weiss never in fact acquired any interest in the property or business. Therefore the petition was properly dismissed as to him. It appears that on or before July 15, 1898, the defendant Zermuehlen purchased all the interest of his partner, Ohlschlager, in the business and ■property of the firm; that Ohlschlager retired from the firm .and the business, and that thereafter, up to the commencement of this action, September 2, 1898, the defendant Zermuehlen owned and occupied said place for the keeping for sale and selling intoxicating liquors therein; and that he there sold such liquors in his own name, and for his own benefit. It is conceded that Zermuehlen paid the tax in accordance with the| mulct law up to October 1, 1898.

Question is made as to' the sufficiency of the conseut and -of the bond, but, in the view we take of the case, it is unnecessary that we consider those questions.

I. Appellee’s counsel state..the question as follows: •'‘Now, the question is whether or not Mr. Zermuehlen, buying out the interest of his co-partner, Mr. Ohlschlager, and running the business in his own individual name, and paying the license, does that fact destroy the consent given by the -city council to Ohlschlager & Co., and destroy the bond given by Ohlschlager & Zermuehlen ?” The consent was that Ohlschlager & Co. might engage in and carry on said business on the premises described;‘the list of employes was -of employes, of Ohlschlager & Co.; and the bond, whether technically so or not, was intended as the bond of Ohlschlager I: Co., and for the benefit and protection of that firm. By the withdrawal of Ohlschlager from the firm it was dissolved, and the entity known as Ohlschlager & Co. ceased to exist. The firm could not have transferred its right to cai’ry on that business in that place to a stranger, because of the consent and bond that were given, and the tax that was paid. The consent, without which the business was illegal, was to Ohlsehlager & Go. alone, and might.have been withheld if asked as to any other person, or as to either of the persons composing the firm. It is true that, under the list of employes given: by the firm, the defendant Zermuehlen might righfully be engaged in keeping and selling intoxicating liquors in that place, — not, however, for himself and in his own right, nor by virtue of any consent'given to. him as an individual, but simply as an employe of the firm. If it may be conceded that, being a member of the firm, he was included in the consent, yet it may not have been given because of him, but because of confidence in the other member, or in the two acting together, that the business would be legally conducted. In contemplation of law, — at least, so far as this question is concerned, — the persons composing a firm are as separate and distinct from that firm as any other persons. Surely it cannot be said that consent was given that Zermuehlen might carry on that business in that place in his own name and for his own benefit. For aught we know such consent would have been refused. It is enough to say that the protection afforded by the consent and bond .and the payment of the tax was to Ohlsehlager & Go. alone, and that by the dissolution of the partnership that company ceased to exist, and that its rights to this protection pertain t'o it alone, and could not be conferred upon another !by transfer or otherwise, — not even upon a member of the firm who might succeed to the business. Our conclusion is that the decree should be aeeirmed as to the defendant Weiss, and, as to the defendant Zermuehlen, that it should be REVERSED.

Granger, J., not fitting.