Banchor v. Warren

Assumpsit upon a promissory note, signed by the defendant, and payable to the plaintiff or order, on demand, with interest for $160.08, and dated “Boston, June 4, 1851.”'

Plea, the general issue.

It was admitted that this note was given for certain spirituous liquors, sold by plaintiff to defendant on or about December 4, 1850, and that the note was actually made by the defendant at Somersworth, N. H., on the day of its date, or thereabouts: That at the time of the sale of the liquors (December 4, 1850,) the defendant lived in Berwick, in the State of Maine, and the plaintiff in Boston, Mass. It was proved that by the laws of Maine, in force at that time, such sale of liquors, if made in that State by a person having no license, was yoid, and that no action could be maintained for tbe purchase money. And it was also proved that tbe plaintiff bad no sucb license in tbe town of Berwick. It also appeared that if tbe sale in this case were made in Berwick, it. was made by tbe plaintiff’s agent, one Boyden, who also, as sucb agent, afterwards obtained of tbe defendant tbe note upon which tbe plaintiff now brings this suit. It did not appear where tbe liquors were actually delivered; whether at Boston or Berwick, or at Great Falls, N. H. It only appeared that tbe liquors were received by tbe defendant by tbe railroad, which did not extend to Berwick.

Tbe question submitted to tbe jury was, “ where was tbe sale of tbe liquors made ?” and they were instructed that if they should find from all tbe evidence that tbe liquors were sold at Berwick, their verdict would be for tbe defendant, but if at Boston, then it would be for tbe plaintiff.

Tbe court also instructed tbe jury that if they should find that there was a verbal contract, made at Berwick, for the sale and delivery of certain specified quantities of different kinds of spirituous liquors, at certain specified prices for each, and that it was stipulated in tbe contract that tbe liquors should be delivered at a certain place within a given time, and sucb liquors were so delivered in accordance with the stipulations of tbe contract, that this would constitute a sale at Berwick, whether tbe liquors were in fact delivered at Boston or at Berwick, or in New-Hampshire.

Tbe jury returned a verdict for tbe defendant, which tbe plaintiff moves to set aside.

On this case it must be taken that, in pursuance of a verbal contract made in Berwick, tbe liquors were separated and delivered in Boston, or some other place where tbe sale was legal. Tbe verbal contract stated in tbe case did not designate any particular liquors which were sold in specie to the defendant. It was for the sale of certain quantities of liquors of certain qualities; the liquors were to be measured out and separated from others of the same kind before the defendant could take them. No property in any liquors would pass by virtue of this bargain; the property would not vest in the purchaser till they were sepai’ated and set apart for him by the seller.

If the liquors were separated and put on board the railway in Boston for’ the defendant, pursuant to the contract, to be transported to him in Maine according to the usual course of business, there would in law be a delivery of the liquors to the defendant in Boston, and the property would pass to him there, according to the terms of the bargain before made in Maine. The sale, then, would be made and completed in Boston, and not in Maine.

The statutory offence of selling spirituous liquors without license is committed by the sale which passes the property, and not by the negotiations and bargains which precede the sale. Woolsey v. Bailey, 7 Foster 217; Smith v. Smith, 7 Foster 244; Smith v. Godfrey, 8 Foster 379.

The verdict must be set aside.