Wilson v. Stratton , 47 Me. 120 ( 1860 )

The opinion of the Court was drawn up by

Rice, J.

The consideration for the note in suit was intoxicating liquors. The question presented by the parties is, where was the contract for the liquors, out of which the note originated, completed. The plaintiffs concede, that if that contract was made in this State, there was no legal consideration for the note.

The case shows that the defendant, at the time the liquors were purchased, was a tavern keeper in the town of Winn, in this State, and that he gave a verbal order for them at his house, in that town, to an agent of the plaintiffs. The order was filled by the plaintiffs in Boston, Mass., and the liquors forwarded by steamer to the defendant. The truckage, from the warehouse of the plaintiffs to the wharf in Boston, was charged in the bill with the liquors, and afterwards settled by the defendant, and the freight was also paid by him,.he, however, giving no direction as to the shipment of the goods, nor did he take any personal control over them until they reached his place in Winn.

In view of these facts, it is contended by the plaintiffs, that the delivery of the goods, which had been ordered by the defendant, to a common carrier in Boston, for transportation to the defendant, was in law a delivery to him, and that this delivery was a completion of the sale in Massachusetts; and, further, that there is nothing to show that such sale in Massachusetts was in violation of law, and, consequently, under the authority of Torrey v. Corliss, 33 Maine, 333; Orcutt v. Nelson, 1 Gray, 536; McIntire v. Parks, 3 Met., 207, and other authorities of like character, the action may be maintained, though the contract, if made in- this State, would be unlawful.

Were there no elements in this case differing, and distinguishing it from the cases relied on, such might be the fact. But the defendant testifies, and on this point he is not contradicted, that “Smith, (the agent to whom the order was given,) told me when I agreed with him for the liquor, that if I did not get just what I wanted in every respect, I need not have it, nor pay for it.”

He also testified, that this liquor was all entirely different from what he had agreed for with Smith, and a poorer quality.

This is an important qualification. The order was given in Maine; the goods were delivered to a common carrier in Massachusetts, directed to the defendant in Maine, subject, however, to his acceptance or rejection as they should or should not prove satisfactory to him.

Where an agreement is conditional, it shall not be complete till the condition be performed, as if a man sell goods for so much as A shall name, this contract is not complete till A shall name the price. Coin. Dig., Agreement, A, 4.

If the condition be, if he likes the corn or goods upon view, when he first has seen them, and agreed or disagreed, approved or disapproved, the bargain is complete. Ib.; Story on Contracts, 20; Brown on Sales, § § 44, 45.

Where the goods of A were sold by a broker to B, on Saturday, “ the quality to be approved on Monday,” and the buyer did not renounce the contract on Monday, it was held, that, after that day, the contract became absolutely binding on both parties. Long on Sales, 281.

The contract in this case was conditional; upon a condition precedent. That condition could not, under the circumstances, be determined until the goods came to the defendant’s hands. Until he had determined whether the liquors were just what he wanted in all respects, or had a reasonable opportunity to do so, the contract was incomplete. Crane v. Roberts, 5 Maine, 419; McConners v. McNulty, 1 Gray, 139; Grout & al. v. Hill & al., 4 Gray, 361.

This is decisive of the case.

But even were we to find that the sale was technically completed in Massachusetts, it may well be doubted whether this action can be sustained. The policy of this State to. prohibit the indiscriminate sale of intoxicating liquors, is matter of almost universal notoriety. No part of our State.policy has been the subject of more deliberate consideration on the part of our Legislature and of our people. Laws prohibiting this traffic, under severe penalties, have long been upon our statute book. Of.the existence of these laws the plaintiffs could not have been ignorant. Tet, in the face of these laws and of the known and settled policy of the State, they send their agents into the State to seduce our citizens to enter into contracts looking directly to tlieir violation, and, after -having succeeded by such solicitation, in inducing them to enter into such a contract, they come before our courts and ask them, on the principle of comity, to enforce them on the technical ground that they were completed in another State. Such proceedings are manifestly in fraud of the laws of the State, and cannot be upheld by any sound principle of comity. Banchor v. Mansel, ante, p. 58. Plaintiffs nonsuit.

Cutting, Appleton, May, and Kent, JJ., concurred. Tenney, C. J., concurred in the result.