Dolan v. Green , 110 Mass. 322 ( 1872 )

Colt, J.

The payments which the plaintiff seeks to recover back were for liquors sold in violation of law under the Gen. Sts. c. 86, § 61. The phrase “ sold in violation of law,” as used in the statute, means sold in this state in violation of law, and the only question here is whether there was any evidence offered which should have been submitted to the jury as tending to prove such sale.

The contract of sale, although partly made in this Commonwealth, was completed only by the selection of the articles agreed on from the defendant’s stock of liquors in Rhode Island, and their delivery on board the cars to a common carrier in Providence. It was not a sale of specific goods, identified and appropriated by the terms of the contract, and delivered, either actually or constructively, at the place of the plaintiff’s residence in this state; and therefore comes within the rule stated in Abberger v. Marrin, 102 Mass. 70. The effect of such a delivery to a common carrier would not be changed by the fact that the defendant agreed to allow the plaintiff the amount paid by him for freight in settlement of their account. That agreement had reference to the price which should be paid for the liquors sold, and does not determine, upon the facts here offered, the place of the delivery. The jury would not be warranted in finding upon this offer a completed sale here. Exceptions overruled.