CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS.

JONES v. UNITED STATES.

(Circuit Court of Appeals, Fourth Circuit. March 12, 1909.)

No. 875.

INTERNAL Revenue (§ 40*)—VIOLATION OF REVENUE LAWS-PLACE OF SALE of LIQUOR.

A retail liquor dealer who has his internal revenue tax paid stamp duly posted in his place of business is not subject to prosecution for carrying on business without paying the special tax therefor because of the shipment of a quantity of liquor from his stock on an order received by mail by an express company C. O. D. to the purchaser at another place. In such case the sale is completed, and the property passes when the goods are delivered to the carrier; the collection and transmission of the price being merely an incident of the express business.

[Ed. Note. For other cases, see Internal Revenue, Dec. Dig. § 40.*] Pritchard, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Northern District of West Virginia, at Clarksburg.

Melvin G. Sperry, for plaintiff in error.

Reese Blizzard, U. S. Atty., and E. M. Showalter, Asst. U. S. Atty. Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

BOYD, District Judge. Charles H. Jones, the plaintiff in error, the defendant below, was indicted jointly with one J. R. Hickman (the two composing the firm of Jones & Hickman) on the charge of carrying on the business of retail liquor dealer without payment of the special tax imposed by law. Section 3242a, Rev. St. (U. S. Comp. St. 1901, p. 2095). Jones was tried separately on this indictment at Clarksburg, in the Northern District of West Virginia, at the October term, 1908, of the United States District Court for said District, was convicted by the jury, and was sentenced by the court to pay a fine of *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 170 F.-1

$100 and to be imprisoned in a jail for 30 days. The case is before us on a writ of error to review the action of the trial court in refusing to instruct the jury as requested by the defendant, and also upon exception to instructions given by the court to the jury.

The case went to the jury on the facts disclosed by the testimony offered by the government (the defendant did not introduce any testimony); the said facts being in substance as follows:

The firm of Jones & Hickman (composed of C. H. Jones and J. R. Hickman) was a retail liquor dealer in Clarksburg, W. Va., in the year 1905. The said firm had its located place of business at Clarksburg, and it had paid for, procured, and had posted in said place the special tax stamp required by the internal revenue laws of the United States, and the said stamp covered the time of the sale hereinafter mentioned. That in or about the month of December, 1905, one L. T. Horton, residing at Grafton, W. Va., sent a written order by mail addressed to Jones & Hickman at Clarksburg, W. Va., directing the said firm to ship him (Horton) at Grafton a half gallon of whisky by express C. O. D.; the price of the whisky being $2. In response to this order, Jones & Hickman segregated from the stock in their place of business at Clarksburg the half gallon of whisky so ordered, put it in a package, and delivered it to the express company's agent at Clarksburg, consigned to L. T. Horton, Grafton, W. Va., C. O. D. The package reached Grafton in due course, and was there delivered by the express agent to Horton upon the payment of $2, the price of the whisky, and the express charges for freight; and the $2, the price of the whisky, was thereafter remitted by the express company to Jones & Hickman at Clarksburg.

Upon this state of facts the defendant moved the court to charge the jury as follows:

"That the shipment of liquor made by the defendant from his place at Clarksburg, in Harrison county, to the town of Grafton, in Taylor county, by the United States Express Company C. O. D., and upon the written order of the purchaser living at Grafton, directing the same to be so shipped, was a sale at Clarksburg at the storehouse or saloon of the defendant, and not a sale at Grafton.

The court refused to give the instruction, to which defendant's counsel excepted. The court then charged the jury as follows:

"Gentlemen, the court instructs you: That a sale involves at least three elements: First, on the part of the purchaser, a consent to buy; second, on the part of the seller a consent to sell; third, the delivery of the article; and ordinarily, fourth, the payment of the purchase price, and that all of those elements enter into a sale. That a whisky seller who has license to sell in Clarksburg and receives an order can send it to the person who orders it in the ordinary course of business and run the risk of the man's paying, in the ordinary course of business, but, if he sends it C. O. D.-in other words, makes of the express agent his agent to complete that sale and deliver it in case it is paid for at Grafton-that then he is guilty of selling at Grafton, and not at Clarksburg."

To this instruction as given by the court the defendant's counsel then and there duly excepted. The assignments of error are based upor bills of exception as above.

There is but a single question presented in this case, and that is whether the transaction detailed constituted a sale of liquor at Grafton. In other words, whether Jones & Hickman, who were doing a lawful business as retail liquor dealer in Clarksburg, violated the law by taking a half gallon of whisky from the stock in their place of business and delivering it to the express company at Clarksburg for shipment upon Horton's order to him at Grafton C. O. D. The disposition of this question rests entirely upon where the sale was made. Was it made at Clarksburg when the liquor was taken from the stock of the dealer in its lawful place of business as ordered by Horton, or at Grafton where Horton received the package and paid to the express agent the amount of the C. O. D. and the express charges for carriage? It is insisted by the United States attorney in his argument (by brief) that the sale to Horton was not consummated at Clarksburg, that the contract was not completed until the package of liquor reached Grafton, and was there delivered to the purchaser upon the payment by him of the price. It is true that, under local prohibitory laws of some of the states, the place of delivery of spirituous liquors has been made the place of sale, and the courts of these states have upheld these laws, but aside from these we have found no declaration to that effect from any source which we consider sufficiently authoritative to bind us. In our opinion the bargain was struck and the sale was completed at Clarksburg. The defendant's firm received Horton's letter, in which he ordered the liquor, stated the price, directed the manner of shipment and the method of payment. By the terms of the order the sale was consummated at the place of business in Clarksburg, and the express company was constituted the agent of the purchaser to transport the article purchased, and to receive and remit to the seller the price. We find this view of transactions of the character involved here very forcibly presented in a number of decisions by the Supreme Court of the state of West Virginia, notably in the case of State v. Flanagan, 38 W. Va. 53, 17 S. E. 792, 22 L. R. A. 430, 45 Am. St. Rep. 826, in which the court held:

"A licensed liquor dealer doing business as such in one county is not liable to indictment in another county for retailing liquors therein without a license where he shipped by express C. O. D. to a person in the latter county a package of whisky, as per his order by postal card, sent through the mail, and which was received in the former county. Such facts show that the sale was made in the former county, and not in the latter."

And also in the case of State v. Davis, 62 W. Va. 500, 60 S. E. 584, 14 L. R. A. (N. S.) 1142, decided by the Supreme Court of Appeals of West Virginia in November, 1907, from which we quote as follows:

"A sale by a retail dealer in intoxicating liquors, in which delivery is made within the town or county in which he has a license, in fulfillment of an order received and accepted at the place of business designated in his license from his stock of goods kept in that place, is deemed by the law a sale at the place of business, and not a sale at the place of delivery, unless it appears that the place of delivery was agreed upon as the place of sale."

The principle is also fully sustained in a leading Pennsylvania case. Commonwealth v. Fleming, 130 Pa. 138, 18 Atl. 622, 5 L. R. A. 470,

17 Am. St. Rep. 763. In the opinion in that case our view is distinctly stated in the following language:

"Where a purchaser orders goods sent him C. O. D. and the order is accepted by the seller, and goods delivered to the carrier, the sale on the part of the seller is complete. When the purchaser orders goods sent him C. O. D. and the order is accepted by the seller and the goods delivered to the carrier, the latter becomes the agent for the receipt and transmission of the price. The sale is complete on the part of the seller. And, whether the carrier receives the price or not at the time of delivery, he is liable to the seller for the price. A licensed liquor dealer who receives an order from a purchaser residing in another county where the dealer has no license to send him liquor C. O. D., and accepts the order and delivers the liquor to a carrier under agreement to collect on delivery, cannot be convicted of selling liquor without a license in the county where the purchaser resides, as the sale is complete on the part of the dealer when he delivers the liquor to the carrier at his place of business."

In the case of the United States v. Lackey (C. C.) 120 Fed. 577, Judge McDowell, of the Western District of Virginia, held that, where "a licensed liquor seller received orders from customers living in a place where he was not authorized to sell, and filled such orders by separating the liquor from his stock in his place of business, and delivering the packages, marked with the customers' names, to a private carrier, to be carried to the customers and to be delivered at their places of residence on payment of the price, under such circumstances the sales were completed in the seller's place of business, where he was licensed to sell." State decisions almost without number could be collected sustaining the general proposition that upon an order for goods to be shipped by the vendor to the vendee the sale is complete when such goods are delivered to the carrier. In the case of Ober & Sons v. Smith, 78 N. C. 313 (reprint 274), the Supreme Court of that state, Faircloth, J., delivering the opinion, holds that:

"As soon as an order for goods is accepted by the vendor, the contract is completed without further notice to the vendee; and such contract is fully performed on part of vendor by delivery of the goods in good condition to the proper carrier. A delivery to a carrier designated by the vendee is of the same legal effect as a delivery to the vendee himself."

And in Gwyn v. Railway Company, 85 N. C. 429, 39 Am. Rep. 708, Chief Justice Smith delivering the opinion of the court, it is decided that the sale of a specific chattel by words "in præsenti" transfers the vendor's title to the vendee with a right to retain possession until the purchase money is paid, in the absence of any contrary intent expressed or implied. In this last case the court cites with approval Ober v. Smith, supra. In another case, that of the Norfolk Southern Railway v. Barnes, 104 N. C. 25, 10 S. E. 83, 5 L. R. A. 611, Shepherd, J., delivering the opinion of the court, it is held that where a buggy was sold by A. to B., and delivered to a carrier by the vendor to be delivered to the vendee upon the payment of the price, as soon as the vehicle was delivered to the carrier, the right of property passed to the vendee, and the right of possession remained in the vendor until the price was paid. And the same doctrine is reiterated in Bank v. Miller, 106 N. C. 347, 11 S. E. 321. And the doctrine is also laid down as a general principle in both Benjamin and Hilliard on Sales.