City Trust v. American Brewing Co. , 2 Liquor Tax Rep. 651 ( 1902 )

McLennan, J. (dissenting):

It seems to me that the law of principal and agent has no application to this case. The conditions of the bond related solely to the personal acts and conduct of Kurtz. By its terms he was not liable for the acts of any one else, unless permitted or authorized by him upon the premises covered by the liquor tax certificate. Neither was any one else liable for his acts. It was purely a personal obligation on the part of Kurtz. Whether the bond should be violated or not, and thus the surety become liable, was wholly with Kurtz and for him to determine. The act of the brewing company, or of any one else, could not create an obligation under the bond. It seems to me that it might as well be said that if an agent gave a bond to keep the peace, and violated it while acting as agent, the principal would be liable on such peace bond, or for the amount the surety had to pay.

It seems to me clear that upon principle as well as upon authority the case was rightly disposed of by the court below. I, therefore, think the motion for a new trial should be denied, and judgment ordered for the defendant.

Hiscock, J., concurred.

Plaintiff’s exceptions sustained and motion for new trial granted, with costs to the plaintiff to abide the event.