Tuttle & Reed v. Holland , 43 Vt. 542 ( 1871 )

The opinion of the court was delivered by

Peck J.

In this case we consider that, upon the facts reported, the contract for the liquors (except the wine,) must be regarded as having been made in the state of Connecticut. The defendant’s order, upon which the liquors were forwarded, having" been drawn at Brattleboro in this state, where the defendant resided, and forwarded by mail to the plaintiffs at their place of business, at New Haven, Connecticut, and the liquors delivered to the common carrier there in the ordinary and usual course of business, and thus transported to the defendant in this state, shows that the situs of the contract, for the purposes of the question involved, was in the state of Connecticut; and therefore the sale cannot be held void as made in contravention of our statute prohibiting the sale of intoxicating liquors. The plaintiffs having done nothing, either in the mode of packing or forwarding the liquor, or otherwise, to aid the defendant in the evasion or in the violation of our law, except the sale of the liquor in Connecticut, and the delivery of it there to a common carrier to be forwarded in the common mode, the mere fact that they knew that the defendant intended to sell it in violation of our law does not render the contract void. The order upon which the liquor was forwarded purported to have been signed by the defendant in person, and there is nothing indicating that the plaintiffs had any' reason to suppose otherwise. The fact that it was made by the defendant’s wife, without the knowledge or authority of the defendant, does not vary the legal result of the transaction, as the defendant, upon the receipt of the liquor, was apprised that it was ordered by his wife, and did not repudiate the order, but ratified it by the receipt and use of the liquor and subsequent partial payment therefor. This implied ratification by the defendant, of the act of his wife in making and sending the order, made the act his own, and places the defendant in the same condition, as to the binding force of the contract, as if he had himself drawn and forwarded the order. When the act of the defendant’s wife thus became his act, it became so with all its incidents, including the incidents of time and place, and has the same effect in determining the place of the contract as if the defendant had done the act himself. There is no ground therefore to claim that the acquiesence in, or ratification of, the act of the wife fixes the situs of the contract in this state. It is claimed that the sale is to be presumed void by the laws of Connecticut, in the absence of evidence as to the law of that state on the subject. But as such sales are valid at common law, it cannot be presumed that they are prohibited by statute in Connecticut without proof to that effect. As to the wine, that having -been subsequently verbally ordered by the defendant in this state, there can be no recovery for it. The payments must be applied upon the legal portion of the account.

The judgment of the county court is reversed and judgment for the plaintiffs for the amount of the account, (except the bill for the wine,) deducting therefrom the amount of the payments.