(113 A.)

bid was the highest, and Mr. Freedman said | statutory provision, the agency may be esThe agency may be to plaintiff: "You can have it with good tablished by parol. luck." proved in the same manner as an agency in When the agency any other transaction. is thus established, a written contract or memorandum signed by the agent so created will bind his principal. Newton v. Bronson, 13 N. Y. 593, 67 Am. Dec. 89; Hawkins v. Chace, 19 Pick. (Mass.) 502-505; Tyrrell v. O'Connor, 56 N. J. Eq. 448, 41 Atl. 674; Worrall v. Munn, 5 N. Y. 229, 239, 55 Am. Dec. 330; Brandon v. Pritchett, 126 Ga. 286, 288, 55 S. E. 241, 7 Ann. Cas. 1093; 2 Corpus Juris, 450.

Koletsky figured out the necessary adjustments after arriving at figures agreed to by the parties, and prepared a bond for a deed. Mr. Freedman refused to sign the instrument until he had received $50 from plaintiff, and plaintiff refused to pay until Freedman had signed. Plaintiff and Mr. Freedman agreed to leave the $50 with the bond for a deed until the deed should be drawn and delivered when the $50 should be paid. Plaintiff signed the bond, and defendant signed Mrs. Dora Freedman by Jacob Freedman her duly authorized agent.

On the night of December 14th Freedman informed his wife, the defendant, of what he had done at Koletsky's office. The bond for a deed required defendant to deliver to plaintiff a warranty deed on or before January 1, 1919, and on December 31, 1918, plaintiff duly tendered defendant the amount due under the contract Exhibit A. Defendant refused to accept the money.

The court reached the following conclusions:

The defendant duly authorized her husband to act as her agent in selling her interest, or in buying plaintiff's interest in the property and in executing and delivering a written agreement for that purpose. Defendant and her husband each severally represented to the plaintiff and to her attorney that Mr. Freedman, husband of defendant, was duly authorized to contract for the sale of defendant's interest in, or for the purchase of plaintiff's interest in, said property. Defendant became dissatisfied with the price and refused to make conveyance and attempted to extort a larger price.

Joseph I. Sachs and Harry L. Edlin, both of New Haven, for appellant.

J.,

Filbert L. Rosenstein, of Paterson, N. and Joseph Koletsky, of New Haven, for appellee.

WHEELER, C. J. (after stating the facts as above). [1-3] The basic error upon which defendant's appeal rests is the court's ruling that Mr. Freedman's authority to sell defendant's interest in this real estate could be created by parol. The ruling was correct. In specific performance upon an agreement signed by an agent in the absence of the

The question did not directly arise in Jacobson v. Hendricks, 83 Conn. 120, 124, 75 Atl. 85; but in the course of the opinion we expressly accepted this as the established doctrine.

If the agency can be created by parol, the defendant asserts that it must be specific as to the description of the property, its location, and the terms of the sale, and these do not appear in the oral authorization to Mr. Freedman.

[4] The rule invoked has no application to this case, since Freedman was a general agent of unlimited discretion in selling defendant's interest in, or in buying plaintiff's interest in, these premises.

[5] The defendant's claim that there never has been a delivery of Exhibit A is refuted by the terms of the finding. Mr. Koletsky in holding Exhibit A acted for each of the parties by their express authorization. Delivery to the agent under these circumstances is delivery to the principal.

[6] Other errors exclusive of rulings upon evidence are controlled by findings adverse to the claims of defendant. The declarations of what Mr. Freedman said when in Mr. Koletsky's office, as testified to by Mr. Koletsky and Mr. Lipkowitz, are objected to as hearsay. When Freedman came to the office of Mr. Koletsky, he was the general agent of his wife, and hence his declarations relative to the subject of the agency and made in its course were admissible.

There is no error.

BEACH, GAGER, and CURTIS, JJ., concurred.

CASE, J., concurred in the result, but died before the opinion was written.

from one Lucibelli that he had in his motortruck for sale some brandy described and labeled as "Three Star Martell" brandy. Later in the day defendant heard that one Perrotti was in the market for brandy, and informed Perrotti that Lucibelli had some for sale. The defendant at Perrotti's request arranged for the sale of five cases of brandy at $50 a case from Lucibelli to Perrotti, and deposited with Lucibelli in part payment $100 which Perrotti had given him for that purpose. The brandy was to be delivered at Perrotti's store. Perrotti found a customer named Hurley for the brandy before it was delivered, and the defendant on being furnished with the balance due Lucibelli took Hurley to Lucibelli's motortruck, paid the latter in full, and superintended the transfer of 60 bottles into Hurley's possession. The state also claimed, but the defendant denied, that the defendant handled some of the bottles.

3. Poisons 4-Nature of criminal "delivery" | When analyzed, the so-called brandy was of article containing wood alcohol stated.

The delivery forbidden by Gen. St. 1918, § 2679, relating to articles containing wood alcohol, is a delivery by owner or agent with intent to consummate transfer of property in the thing sold, and not merely making a transfer of possession from one person to another.

found to contain over 30 per cent. of wood alcohol.

In overruling the demurrer to the information and in its charge to the jury the trial court ruled that the state was not bound to allege or prove that the defendant knew of the presence of wood alcohol in the article delivered. And in excluding testimony of

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Deliver-fered by the defendant the court held that Delivery.] it was immaterial that the defendant did not know of its presence.

4. Criminal law

1172(1)-Instruction that deliverer of article containing wood alcohol need only intend to transfer possession held harmless.

An instruction that the delivery of an article containing wood alcohol was an offense if made with intent to transfer possession, and not title, was harmless where it appeared that defendant was the owner's agent and delivered the article with intent to consummate transfer

of title.

In defining the delivery prohibited by the statute the court charged the jury as follows: 'delivery' when applied to personal property is "A fairly satisfactory definition of the word that it signifies the placing by one person of session of another person and thereby making some article or articles into the power or postate an actual passing from one hand to anotha transfer of possession. It does not necessier. A person controlling or superintending such a transfer need not necessarily handle the

Appeal from Superior Court, New Haven article or articles transferred. It is sufficient County; John E. Keeler, Judge.

Frank Annicelli was convicted of delivering to another an article of drink containing wood alcohol, and appeals. No error.

The material part of the statute under which the defendant was convicted is as follows:

if he parts with such custody or control of the article or articles as he previously had."

David J. McCoy and Ernest L. Averill, both of New Haven, for appellant.

Arnon A. Alling, State's Atty., and Walter M. Pickett, Asst. State's Atty., both of New Haven, for the State.

"Sec. 2679. * No person shall sell, exchange, offer for sale or exchange or deliver or BEACH, J. (after stating the facts as have in his possession with intent to sell, ex- above). The assignments of error cover change or deliver, any article of food or drink, three main propositions of law: That the or any drug, intended for external or internal statute, when properly construed, prohibits use on or within the human body, or any per- the sale, exchange, or delivery of articles fume or toilet article containing any wood alco-containing wood alcohol only when the preshol known as methyl alcohol."

The following facts were admitted: On December 24, 1919, the defendant learned

ence of wood alcohol is known to the party charged; that, unless so construed, the statute is unconstitutional: and that the delivery forbidden by the statute is not a mere

(113 A.)

transfer of possession, but a delivery which when those who are really responsible for consummates the transfer of property in the articles sold or exchanged.

the transfer of property are penalized. It seems unnecessary and unreasonable to hold that a bystander, or a porter, or a carrier who has nothing to do with the transaction except to move the article from one place to another should be made responsible for the unwholesomeness of adulterated food or drink because in moving it from one place to another he incidentally accomplishes a transfer of possession and control from one person to another. The accused need not know that the thing sold or exchanged contains wood alcohol, but he must intend to transfer the property in the thing sold or exchanged. And that intent can only be present, in any culpable sense, in the mind of the owner or of his agent authorized to transfer the property for him.

On his own statement of claim the accused was Perrotti's agent. Lucibelli had agreed to deliver the brandy at Perrotti's store. In the absence of evidence of a contrary intent, the property remained in Lucibelli until so delivered. Hurley bargained with Perrotti before such delivery, and it is apparent that the transfer of the property from Lucibeli to Perrotti and from Perrotti to Hurley could not have been accomplished at the time and place except for the active intervention of the accused as Perrotti's agent. It is immaterial whether the accused be regarded as Perrotti's agent to take delivery from Lucibelli and make delivery to Hurley, or as Perrotti's agent to authorize Lucibelli to deliver to Hurley instead of to Perrotti. The accused either delivered the brandy, or he caused it to be delivered, with intent to

[1, 2] The trial court rightly charged the jury that the fact that the accused may not have known that the article or articles contained wood alcohol did not enter into the case. Nevertheless the statute is a valid exercise of the police power. The state may forbid the sale, exchange, or delivery of food and drink adulterated with a specific and particularly dangerous poison; and it may take all measures reasonably necessary to make the prohibition effective. The only reason given for the alleged unconstitutionality of the statute is the difficulty of discovering the presence of wood alcohol in articles of food and drink. For this reason it is said to be unreasonable and contrary to natural right and justice to require mer chants to know, at their peril, that the food and drink which they offer for sale is not adulterated with wood alcohol. This argument is logically and historically unsound. The more difficult it is to ascertain the presence of wood alcohol in food and drink the more necessary for the protection of the public that those who choose to offer such articles for sale or exchange should assume the responsibility of seeing that it is not present. Historically, the obligation to answer for the wholesomeness of food sold is one which has been recognized by the common law from early times. Blackstone says, "In contracts for provisions it is always implied that they are wholesome; and, if they be not, the same remedy may be had," meaning an action on the case for damages for the deceit. Williston observes that the common consummate the sale from Perrotti to Hurlaw implied warranty of wholesomeness was derived from what Parke, B., in Burnby v. Bollett, 16 M. & W. 644, calls "an ancient statute," under which he says that victualers "are also liable to punishment for selling corrupt victuals (certainly if they do so knowingly and probably if they do not)." See, also, other authorities collected in the note to Williston on Contracts, § 995. From that time to this it has been well understood that the sale of injurious, adulterated, or imitation articles of food and drink may be penalized, though the seller act in good faith. [3, 4] We think the delivery forbidden by the act is a delivery by the owner or his agent with intent to consummate the transfer of property in the thing sold or exchanged. The essential mischief to be prevented by the act is the transfer of property in certain articles containing wood alcohol, and the purposes of the prohibition are satisfied

ley; and it is immaterial whether he assisted in the removal of the bottles from one place to another.

The charge of the trial court would permit the jury to find the accused guilty if he had done nothing more than assist in the transfer of possession by handling the bottles. This was erroneous. But the error was not harmful to the accused, because, as already stated, he admitted, and indeed claimed, facts from which it follows as a conclusion of law that he delivered the brandy in the narrow and more culpable sense of representing the owner in the transfer of the property. The jury were correctly charged that person controlling or superintending such a transfer need not necessarily himself handle the article or articles transferred.

There is no error.

The other Judges concurred.

(3) Said renunciation and repudiation of said 3. Sales 88-Implied terms of written con- agreement by said defendant was against the tract question for court.

(113 A.)

plaintiff; there is no averment that such a should be executed, and consequently that form of contract was ever concluded between the mere writing, " 3/29/20. Accepted. The the parties, and the plaintiff was accordingly Chesapeake Terra Cotta Co. Yours truly, per never bound by defendant's alleged acceptance Francis Parsons," upon the offer, did not of said proposal; wherefore the alleged concreate a contract. tract is illusory and void, and fails for want of mutuality. (2) No consideration is averred for the alleged agreement of the defendant to accept said terra cotta save only said illusory, conditional, and void promise of the plaintiff to be bound by the terms of its said proposal; wherefore the alleged contract fails for want of consideration.