Theo Hamm Brewing Co. v. Young ( 1899 )

MITCHELL, J.

This was an action to recover the purchase price of two lots of beer sold and delivered to the defendant Young, — one by the plaintiff, and the other by plaintiff’s assignor, Theodore Hamm. The stipulated facts are as follows:

At the respective dates of these sales, plaintiff and its predecessor and assignor, Theodore Hamm, were doing business in Moor-head, Minnesota, and authorized by the laws of this state to sell beer at that place. At the same dates, the defendant Young was a resident, of Fargo, North Dakota, and from that place, at the dates referred to, he telephoned to the plaintiff and Theodore Hamm, respectively, at Moorhead, ordering beer to be delivered to him at his residence in Fargo. The plaintiff and Hamm, respectively, received the telephone message at Moorhead, there entered the orders on their books for delivery, and thereafter delivered the beer to the defendant at Fargo. During all that time the statutes of North Dakota prohibited the sale of beer in that state, and such sale was during all that time, and now is, a criminal offense in that state, except by licensed druggists and pharmacists, and then only for medicinal, mechanical, and scientific purposes. Neither the plaintiff, the defendant, nor Theodore Hamm hás ever had a license to sell beer in North Dakota for any purpose whatever. By the laws of North Dakota, sales of beer or other intoxicating liquors made in that state, except by persons licensed so to do for the purposes above named, were and are void, and payment therefor could not and cannot be enforced.

It is very clear that, upon the facts, these sales were made in North Dakota. There is where delivery to the purchaser was to be made, according to his order, and was in fact made, and then, and not till then, the title passed to the purchaser. Until then there was not even an executory contract for the sale of the beer,— nothing except an unaccepted order for the goods by Young. It is not material for what purpose Young was buying the beer. The material facts are that the sale was made in North Dakota, and that neither the plaintiff nor Theodore Hamm had any license to sell intoxicating liquor in that state. The sales being illegal, void, and nonenforceable in the state whére they were made, no action can be maintained upon them in this state. Note the distinction between the facts in this case and those in Bollinger v. Wilson, infra, page 262, where the liquor was to be, and was, delivered to the purchaser on board the cars at Milwaukee, Wisconsin.

Judgment reversed, and a new trial granted.