State v. . Colonial Club , 154 N.C. 177 ( 1910 )

Manning, J.

Chapter 71, Public Laws of 1908, the Statewide prohibition act, having been approved by a majority of the voters of the State at the special election held therefor, it is now unlawful for any person or persons, firm or corporation, to manufacture or in any manner make or sell or otherwise dispose of for gain, at any place within the State, any spirituous, vinous, fermented or malt liquors or intoxicating bitters.

In the disposition of this appeal we are not concerned with the manufacture or in any manner the making of the prohibited liquors. The special verdict presents the question whether the facts found constitute a sale by the defendant or an otherwise disposition of the beer for gain. The words “sale” or “sell” have a well-known legal signification, and in the absence of anything to the contrary appearing in the statute, we must assume that they were here intended to have that signification. This is a generally accepted rule of statutory construction. Black on Intoxicating Liquors, secs. 403, 406; Patterson v. Galliher, 122 N. C., 511; Adams v. Turrentine, 30 N. C., 147; S. v. Gupton, 30 N. C., 271; S. v. Barco, 150 N. C., 792; 36 Cyc., 1114. The word sale is thus defined: “A sale is a transmutation of property from one man to another in consideration of some price or recompense in value.” 2 Blk. Com., 446. “It is a transfer of the absolute or general property in a thing for a price in money.” Benj. Sales, sec. 1. “A sale is the passing of the title and possession of any property for money which the buyer pays or promises to pay.” Konavek v. State, 38 Tex. Crim. Rep., 44, 41 S. W., 612; S. v. Law and Order Club (Ill.), 62 L. R. A., 884; 7 Words and Phrases Judicially Defined, 6291 and 6292. In S. v. McMinn, 83 N. C., 668, an indictment for retailing- without license, Judge Dillard, speaking for this Court, said: “A sale is the transmutation of the property in a personal chattel from one to another on a quid pro quo, paid or agreed to be paid, and such a change of property in the retail of spirituous liquors by the small measure is usually effected by the delivery of the article and the payment of the price simultaneously; but it may be made in other modes. . . . To constitute a sale under the statute against retailing, there is no necessity for a manual separation and delivery of the parcel by the retailer to the customer, but it will be a delivery sufficient in law if the keg, decanter, or other vessel be so placed or prepared as that the customers can or may, with the consent of the owner, draw for himself; and so, likewise, the price paid in completing the sale need not be paid into the hands of the proprietor, but it will be equivalent if it be deposited for him in a place of his appointment.” S. v. Kirkham, 23 N. C., 384; S. v. Bell, 47 N. C., 337; S. v. Simmons, 66 N. C., 622; S. v. Poteet, 86 N. C., 612; S. v. Taylor, 89 N. C., 577; 1 Mechem on Sales, sec. 1. This learned writer says in section 1: “The essential elements here involved are that there must be (1) a transfer, of (2) the general or absolute title, to (3) a specific chattel, for (4) a price in money or a consideration estimated in money. Sale is preeminently the transfer of the title.” Again: “Sale means, moreover, the transfer of the absolute or general title. There may be other transfers, of limited interests, such as the right of possession or some specific property in or lien upon the goods; but these, as will be seen, do not constitute a sale.” So that, to constitute a sale, it being necessary that the facts found should prove a transfer of the absolute or general property in the chattel, we think they fail in this case to show this essential element; and we think, also, there was an entire failure to show that the transfer was for any consideration whatever, presently delivered or promised. If there was no general or absolute property in the beer transferred to the defendant, there was no transmutation of title. Nor was it the agency selected to work a change of title. "We must have due regard to the fact that we are construing a penal statute and the rule of strict construction applicable to such statutes; nor do we feel warranted in extending the meaning of a word of “precise legal import, both at law and in equity,” to reach an unexpressed but presumed intention of the Legislature. The defendant, as the depository of the beer ordered by the member of the club unknown to the jurors, who ordered the beer and had it delivered in his name and for his use to the defendant, was acting solely as the servant, agent, or bailee without hire for such member. The member made the order in his own name, specified the quality and quantity, directed it to be shipped to him in care of the defendant; the firm or person to whom the order was sent lived beyond the State; 'the beer was shipped as directed, addressed to the person ordering it at Charlotte, and was delivered as directed, at defendant’s club-house. When or how did the title become vested in the defendant? What right of property did it have in it, and when and by what act? The delivery to defendant for the person ordering and in his name could certainly vest in it no right of property. Could any creditor of the club have seized it under execution, as the property of the club? If so, when did the ownership and title of the person who ordered it, paid for it, and to whom it was shipped, cease, and by what process known to the law was there a transmutation of his title? “The laws of this State have thus far not made the purchase of whiskey a criminal offense, when it is bought by the purchaser himself and for his own use. To bring one who procures whiskey for another under this statute (section 3534, Eevisal) it will be noted that the sale by which it was procured must be illegal, and the law does not apply to cases where the sale is not illegal, or where, our State legislation on the subject cannot apply, to and affect the transaction. Such cases are not within the purview of the section referred to, Eevisal, sec. 3534, but, as to them, the general doctrine obtains, that in sale of whiskey, where one acts entirely as agent of the buyer, having no interest in the whiskey, and taking no part in the sale as vendor, nor as his agent or employee, such person is not indictable under the laws controlling the subject, as they now stand. S. v. Smith, 117 N. C., 809.” S. v. Whisenant, 149 N. C., 515.

Tbe rationale of tbis decision is obvious; my own agent is not a vendor to me when be executes my order to buy as I direct, and delivers tbe property so authorized to be bought to me; be is but my representative, there is no sale by him to me. Tbe mere forwarding its member’s money by its own check to tbe nonresident vendor was not an illegal act, nor did it vest tbe title to tbe beer in tbe defendant. In Lockyear’s case, 95 N. C., 633, tbe liquor furnished tbe members of tbe club (a corporation duly organized under tbe laws of tbis State) was purchased by and in tbe name of tbe corporation; the title to it was in tbe corporation, and when tbe corporation transferred any of it to a member or stockholder, every element essential to constitute a sale was present. While, ordinarily, to constitute a sale (as in tbe case of every simple contract) a consideration is necessary, tbe facts determinative of tbe transaction as a sale do not depend upon tbe adequacy of tbe consideration, and tbe fact, as in tbe Loclcyecar case, that tbe liquor was furnished at cost did not relieve tbe transaction!from being a sale. So in Neis’ case, 108 N. C., 787, a ease resembling, but upon tbe facts easily distinguishable from, tbe present case, tbe defendant. (as steward of tbe club) held tbe liquors for tbe several members, not in separate jugs or other vessels for each, but commingled in tbe same jugs and vessels, and received from each member tbe price of tbe liquor delivered to him as be wished at tbe rate of 10 cents per drink, and with tbe money so paid him be replenished tbe stock with other liquors and sold of them indiscriminately to tbe contributing members at tbe stated price. It is clear, therefore, that the purchasing member did not have tbe sole property in tbe whiskey delivered to him, and that tbe sum paid was tbe price, at least, of tbe interest of tbe others in it, and that tbe defendant was tbe agent authorized to make tbe sale and receive tbe price; and tbis being done in territory where a sale was prohibited, it was violation of law. So tbis Court said: “Before the transaction, tbe money was solely bis and tbe liquor belonged to several. By virtue of the transaction, and in exchange for the money, the liquor became his sole and separate property. This is surely a sale. It has every element of a sale.”

In S. v. Bell, 47 N. C., 337, the Court, in defining what constituted a sale by the small measure under the statute prohibiting the retailing of spirituous liquors “by the small measure, that is to say, in quantities less than a quart, without license,” said: “In the case of S. v. Kirkham, 23 N. C., 384, the Court said if the contract between the parties had been that the seller should deliver a quart of spirits, ivhich particular quart should thereupon become the property of the purchaser, although the seller, by agreement, was to retain it for the purchaser, so as to be used by the latter, from time to time, as he might require, we suppose that such a contract (unless, perhaps, it were found by the jury that there was an intent thereby to evade the statute) must have been held to be a contract for the sale of a quart. In the ease now under consideration the particular quart became the property of the purchaser upon the price being paid; it was placed in a decanter separate from the rest of the spirits, to be used by the purchaser at his pleasure, and he might at any time have taken away the whole without the consent of the seller, and either carried it home or deposited it elsewhere.”

So in the present case we think it was competent for the particular member of the club referred to in the special verdict to have taken away the bottles of beer ordered and received by him, and either carried them home or deposited them elsewhere. It was in separate bottles from that ordered by others, and it may have been of a different brand or even of the same brand. We think the facts found in the special verdict expressly negative an intent to evade the statute, unless the facts themselves, as found therein, independent of any actual intent, determine the guilt of the defendant.

It must be further observed, in the consideration of this case, that we are dealing with a special verdict and not a general verdict. In the case of a special verdict we have held that “The Court is confined to the facts found, and is not at liberty to infer anything not directly found.” S. v. McCloud, 151 N. C., 730; S. v. Custer, 65 N. C., 339; S. v. Hanner, 143 N. C., 632. In the case of a general verdict of guilty, many presumptions arise wliich do not in a special verdict. If intent is a necessary element of the crime, and a special verdict is rendered which does not find the intent, this Court cannot presume its existence. In any case, the trial judge may decline to receive a special verdict, and insist that the jury return a general verdict of guilty or not guilty; but when a special verdict is found by the jury, neither the trial court nor the appellate court can add any fact not directly found, nor can its existence be presumed. The special verdict, however, finds that the beer shipped to the unknown member in the care of the defendant was, after delivery at defendant’s club-house, “at once taken charge of by the manager and put in the refrigerators and mingled with the beer of other members, and on the same day and for some days thereafter said club manager delivered bottles of lager-beer to said member out of the club’s refrigerators,” until the member had exhausted the number of bottles ordered by him; and the learned counsel for the State earnestly contend that this commingling or voluntary confusion by the defendant of the several bottles of beer ordered by any two or more of its members transmuted the title of all of it to the defendant, and constitutes a subsequent delivery of it to any such member a sale by the defendant, and, therefore, a violation of the statute. It will be noted that the special verdict finds other facts pertinent-to this contention, to wit, that the member who ordered the 10 dozen pint bottles of a particular brand of beer received that number of the brand when and as he desired; that beer coupons were issued to him showing the quantity and brand ordered; that when the quantity ordered by him and delivered to defendant was exhausted, he could get no more; and that the beer coupons were used as a check to prevent the member from over-drinking his beer. There was no agreement or understanding that the member was to be paid for any shortage, or that the defendant had any power of substitution or any right of disposal except as called for by the member who delivered it to the club. There was no storage charge or charge of any kind made or received by defendant for its service, nor any gain or profit of any kind or nature to it in the transaction, nor, if a sale, any consideration, however small, to support the transaction as a sale. It was wholly a gratuitous service. No consideration was paid the defendant, none promised it; the member drank the quantity and quality of beer as ordered by him, and no more. The defendant received nothing. A simple illustration will serve to present this contention. A, B, O, and D, each owning a Berkshire pig 4 months old, severally take them to their common friend, Farmer Jones, for his care and oversight. Farmer Jones, without charge and solely for the accommodation of his friends, accepts the pigs, and, having but one pen, he puts each pig into that pen as he is brought. His friends know this will be done. When A calls for his pig, suppose Farmer Jones should say to him: “A sale has been made to me by you of the pig.” And if he were to deliver the pig to A, upon his persistent ‘denial of a sale, he would say: “I now sell him to you again.” We may well imagine the astonishment of both A and Farmer Jones; the former that a bailment solely for his benefit had been by act of the law, and contrary to the intention of the parties, without price received or even promised, converted into a sale; and the latter, Farmer Jones, that he had become the owner of property he did not intend to own, by the mere accommodating service rendered to his friends; and if a statute prohibited the sale of pigs by any person without a license therefor, that he had violated the criminal laws of the State. In our opinion, the transaction between the defendant club and its members was like unto this. Union Stock Yards v. Western Land Co., 59 Fed., 49. It was a gratuitous bailment, solely for benefit of the member of defendant club — a depositum (Story on Bailment, sec. 41) — and no title was transferred to the bailee as against the bailor, for it is a generally accepted doctrine, “stated broadly and without any qualification, that a bailee may not, in any case, dispute or deny the title of the bailor.” 5 Cyc., 172. The same doctrine has been declared by this Court. Maxwell v. Houston, 67 N. C., 305.

The special property or possessory interest of the bailee is thus stated in 5 Cyc., 171: “The bailee has, by virtue of the bailment and until its termination, a special property or pos-sessory interest in the subject-matter which entitles him, whatever be tbe class of tbe bailment, to avail bimself of any legal means to defend it against any person who may interfere with his accomplishing the purposes of the bailment." Hopper v. Miller, 76 N. C., 402.

Tbe effect of tbe commingling’ or confusion of property is illustrated by tbe decisions of tbe courts in tbe grain elevator or warehouse cases and is considered in tbe authorities. These cases establish tbe doctrine that, being a bailment when tbe grain is received, tbe transaction is not converted into a sale unless by special provisions of tbe contract. 1 Mecbem on Sales, secs. 24, 25, 26. In Woodward v. Seemans (1890), 125 Ind., 330, the Court said: “It is tbe law of this jurisdiction, as well as of many others, that where a warehouseman receives grain on deposit for tbe owner, to be commingled with other grain in a common receptacle from which sales are made, tbe warehouseman keeping constantly on band grain of like kind and quality for tbe depositor, and ready for delivery to him on call, tbe contract is one of bailment and not of sale.” In Rice v. Nixon, 97 Ind., 97, the Court said: “There are cases in which a bailee is responsible for the loss of goods where be commingles them with his own, but this principle does not apply where a warehouseman receives grain to be stored for tbe owner. Articles of such a character can be separated by measurement, and no injury result to tbe owner from tbe act of tbe warehouseman in mingling them with like articles of bis own. . . . There is, however, as shown by tbe eases cited, some conflict of opinion, but, as said in a late work, tbe great weight of authority is that tbe contract is one of bailment and not of sale, tbe warehouseman and tbe depositor becoming owners as tenants in common. Law of Prod. Ex., sec. 154, Autb. N. Q.” And tbe Court further said: “If the warehouseman is not bound to place grain in a separate place for each depositor, then tbe fact that he puts it in a .common receptacle with grain of bis own and that of other depositors does not make him a purchaser; and if be is not a purchaser, then be is a bailee. In all matters of contract tbe intention of tbe parties gives character and effect to tbe transaction, and in such a case as this the circumstances declare that tbe intention was to make a contract of bailment and not a contract of sale.” Story on Bailment, sec. 40; Van Zile Bailments and Carriers, secs. 3, 5, 6, 7, and 8; Coggs v. Bernard, 2 Lord Raym., 912; Bretz v. Diehl, 117 Pa. St., 589; 2 Am. St., 706, and note by the editor, Judge Freeman; Nelson v. Brown, 44 Iowa, 455; Irons v. Kentner, 51 Iowa, 88, 33 Am. Rep., 119. In Sturm v. Boker, 150 U. S., 312, the Court said: "The agency to sell and return the proceeds, or the specific goods if not sold, stands precisely upon the same footing, and does not involve a change of title. An essential incident to trust property is that the trustee or bailee can never make use of it for his own benefit, nor 'can it be subjected by his creditors to the payment of his debts.”

Applying, therefore, these settled doctrines of - the law to the facts found in the special verdict, we are of the opinion that his Honor should have adjudged the defendant not guilty. The special verdict expressly finds that the defendant did not solicit or procure orders for beer — the only prohibited liquor order— nor was it the agent of the vendors (who lived beyond the State), and it is, therefore, not guilty under either section 2080 or 3534. S. v. Johnston, 139 N. C., 640; S. v. Whisenant, supra; S. v. Burchfield, 149 N. C., 537. The judgment is, therefore,

Reversed.