Spencer v. . Fisher

Clark, C. J.

Tbis is an action by Laura Spencer, tbe mother of Carl Spencer, against a banking company and Eisber, its casbier. Tbe complaint alleges tbat Carl Spencer, tbe son of tbe plaintiff, wbo is a widow, is a minor 17 years of age, and tbat in April, 1911, a wholesale whiskey dealer in Richmond, Ya., shipped nine cases of whiskey to New Bern, N. 0., consigned to “order of tbe shipper,” and tbat said shipper forwarded bills of lading, one for each case, to tbe defendant with sight draft attached, with tbe request to “Notify Carl Spencer.” Tbat tbe defendant Eisber was notified by tbe uncle of said Carl tbat be was a minor, and said uncle forbade'tbe delivery to him of said bills of lading, but tbat, notwithstanding, upon payment by said Carl of said drafts, Eisber delivered to him said bills of lading “whereby tbe title to tbe whiskey passed to tbe said Carl Spencer.”

Tbe complaint avers tbat tbis was a sale of tbe whiskey to said Carl Spencer in violation of Revisal, 3524, and tbis action is brought to recover exemplary damages under Revisal, 3525. Tbe court sustained tbe demurrer tbat “tbe complaint did not state a cause of action,” and dismissed tbe action.

Tbe complaint fails to aver that Carl Spencer was “an unmarried person,” as required by Revisal, 3524, and hence the judgment dismissing the action must be affirmed. The court, it is true, might have allowed an amendment in this respect, in its discretion, but it seems that it was not asked for.

Action dismissed.