State v. Intoxicating Liquors , 98 Me. 464 ( 1904 )

Whitehouse, J.

This case comes to the law court on the following agreed statement of facts:

“September 10th, one box containing four quart bottles of whiskey consigned to John P. Bishop, Rumford Falls, Maine, was seized by Constable E. P. Poor from the office of the American Express Company at Rumford Falls, and the liquors were afterwards duly libeled. The box was sent C. O. D., express charges prepaid, by Crigler & Crigler, liquor dealers, from Covington, Kentucky, in response to the following order, which was mailed to them:—

“Rumford Falls, Me., September 3rd, 1903.

“Crigler & Crigler,

“Covington, Kentucky,

“ Gents:

“Please ship me C. O. D., by American Express, express prepaid, one gallon of rye whiskey,

“John R. Bishop,

“Rumford Falls, Maine,

“On the next day after the seizure, September 11th, Bishop called at the express office and asked for the box and was informed that it had been seized. He tendered the charges due on the same, which amounted to $3.85, to the agent of the American Express Company, and demanded the box, but was refused because of the seizure. The same day a like tender was made by Bishop to the seizing officer and the box demanded, which was refused.

“Bishop filed a claim for the liquors at the return day of the libel, and upon the foregoing evidence the judge of the Rumford Ealls Municipal Court ruled pro forma that the liquors were liable to seizure and the same were condemned. From which judgment the claimant appealed to the Supreme Judicial Court.

“If upon the foregoing statement the law court decides that said liquors were liable to seizure and condemnation, the judgment of the lower court shall be affirmed, otherwise judgment is to be rendered for the claimant and said liquor ordered returned.”

It is not contended that the liquor seized by the officer was intended for unlawful sale in this State by the claimant who ordered it. There is no evidence that it was so intended for unlawful sale, and the claimant declared on oath that it was not intended for sale.

In the order which the claimant sent to the Kentucky firm, he designated the carrier to whom the liquor was to be delivered, and specified that it was to be shipped C. O. D., express paid. Under such circumstances the carrier in receiving and transporting the liquor, acts as agent of the purchaser. “ The contract stands upon the simple rule of the common law. The seller was entitled to his price, and the buyer to his property, as concurrent acts. The title passed to the vendee when the bargain was struck. Any loss of property by accident would have been his loss. The vendor had a lien on the goods for his price. The vendor could sue for the price, and the vendee, upon a tender of the price, could sue for the property.” State v. Intoxicating Liquors, Moffitt, claimant, 73 Maine, 278. This rule was affirmed in State v. Peters, 91 Maine, 31, and reaffirmed in Greenleaf v. Gallagher, 93 Maine, 549, 74 Am. St. Rep. 371.

The law is well established that in the absence of any evidence to the contrary, sucli a delivery to a common carrier at the express request of the purchaser, will be deemed a delivery to the purchaser himself. Frank v. Hoey, 128 Mass. 263, and Wigton v. Bowley, 130 Mass. 252. The fact that the express charges were prepaid .by the seller in accordance with the terms of the order has no tendency to show that he intended to preserve the jus disponendi and to prevent the property from passing to the vendee. Sawyer Medicine Co. v. Johnson, 178 Mass. 374.

In the case at bar the liquor was sold and delivered, and the title passed to the claimant in Kentucky and not in Maine.

Judgment for the claimant. ■ Order for return of liquors to issue.