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MAYNARD N. CLEMENT, as State Commissioner of Excise of the

State of New York, Respondent, v. HENRY D. Dwight and Others, Appellants.

Fourth Department, March 9, 1910.

Intoxicating liquors — sale of peruna by apothecary - when sureties

liable - evidence – percentage of alcohol in standard liquors — percentage of alcohol in recognized medicines - damages — intent.

The sureties on the bond of an apothecary licensed to sell liquors only upon the

written prescription of a physician and alcohol for medical purposes without a prescription, are liable in an action by the State Commissioner of Excise where the jury finds that “Peruna” sold by the apothecary which contained twentyseven per cent of alcohol was not sold for medical purposes but as a beverage,

irrespective of the intent of the apothecary in making the sale. In such action it is harmless error to permit an expert to state the percentage of

alcobol in standard whiskies, wines and beers, where the percentage of alcohol

in peruna was not controverted. In such action it is error to allow the defendant to show the percentage of alcohol

in other preparations recognized as standard medicines by the United States Dispensatory to support a claim that peruna was a medicine, for although such preparations may be recognized as medicines by the Dispensatory, they may be liquors within the meaning of the Liquor Tax Law. As an action on the bond of such apothecary is an action on contract, and the

damages are liquidated by the agreement, the intent of the apothecary in making the sale is immaterial.

APPEAL by the defendants, Henry D. Dwight and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 28th day of December, 1906, upon the verdict of a jury rendered by direction of the court, certain questions of fact having been submitted to them, and also from an order entered in said clerk's office on the 18th day of December, 1906, denying the defendants' motion for a new trial made upon the minutes.

William L. Barnum and Edwin M. Wells, for the appellants Dwight and Nye.

Royal R. Scott and Herbert H. Kellogg, for the respondent.

Fourth Department, March; 1910.

(Vol. 137. SPRING, J.:

The appellants, Dwight and Nye, were copartners carrying on a retail drug business in the city of Syracuse, and a liquor tax certificate was issued to them as licensed pharmacists in May, 1904, under the provisions of subdivision 3 of section 11 of the Liquor Tax Law. The certificate was in force at the time of the alleged violation set forth in the complaint, and authorized these defendants to sell liquors upon the written prescription of a duly licensed physician, and also to sell alcohol for medicinal purposes without a prescription. (Liquor Tax Law (Gen. Laws, chap. 29; Laws of 1896, chap. 112], § 11, subd. 3, as amd. by Laws of 1903, chap. 115; since revised into Liquor Tax Law [Consol. Laws, chap. 34; Laws of 1909, chap. 39), S 8, subd. 3.)

At the time of the filing of the application for such certificate these defendants delivered to the county treasurer of said county a bond in the penal sum of $500, executed by them as principals and the appellant guaranty company as surety, and which conformed to the provisions of section 18 of the Liquor Tax Law. (Gen. Lairs, clap. 29 (Laws of 1896, chap. 112], $ 18, as amd. by Laws of 1903, chap. 486; since amd. by Laws of 1908, chap. 350, and revised into Consol. Laws, chap. 34 (Laws of 1909, chap. 39], $ 16.) This action was commenced by the State Commissioner of Excise to recover the penalty named in the bond by reason of the alleged breach of its provisions.

The evidence shows without dispute that on the 18th day of April, 1905, the defendants Dwight and Nye sold at their store to one Pollard six pint bottles of Peruna which, the respondent claims, contained liquors. The defendants contend that the contents were a medicine, and this issue raised the principal question of fact. The evidence again, without controversy, showed that each bottle contained about twenty-seven per cent of alcohol and seventy-three per cent of water, and that the other ingredients in the mixture did not prevent its use as a beverage. There was evidence on the one side showing that it possessed no medicinal value, and that the alcohol was the only part of the decoction possessing any practical efficacy; while the defendants gave proof tending to show that it was a cure or remedy for Bright's disease, catarrh and other diseases. At the close of the evidence the plaintiff moved for a direction of App. Div.]

Fourth Department, March, 1910. a verdict, the determination of which the trial court held in abeyance until the jury should pass upon six specific questions which it submitted. These questions were not objected to by the defendants' counsel, and at the suggestion of the court he aided in the preparation of some of them.

In answering these questions the jury determined whether this preparation sold to Pollard was “a proper remedy for the treatment and cure” of Bright's disease and the various other diseases for which it was claimed to be a cure or remedy ; and also whether the quantity of alcohol in the preparation was necessary to hold the drugs in solution, and whether “the quantity of drugs contained in one bottle of the alcohol diluted with water [was] sufficient in amount, in tablespoonful doses three or four times a day, to produce any appreciable remedial effect." Each question was answered by the jury in the negative, and, consequently, adversely to the defendants.

Upon the coming in of this special verdict the court directed a general verdict in favor of the plaintiff for $500. (Code Civ. Proc. $ 1187.) The specific questions passed upon by the jury were explicit, and covered every material question upon which there was any conflicting evidence, and each special finding is well supported by the evidence.

The appellants' counsel urges upon our attention certain alleged errors committed during the trial which he claims require a reversal of the judgment.

Dr. Deghuee, an expert witness on behalf of the plaintiff, had testified to his analysis of one bottle of the Peruna sold by the defendants to Pollard, and that it contained twenty-seven and thirty-one one-hundredths per cent alcohol by volume, and seventy-two and sixty-nine one-linndredths per cent water by volume. He was then permitted to answer, over the objection and exception of the defendants' counsel, what per cent of alcohol was contained in standard whisky and decanter wines and lager beer. The claim of the plaintiff was that this compound was a beverage, and that the drug ingredients in it did not make it a proprietary mixture of medicinal value or detract from its use as an alcoholic stimulant.

In order that the jurors might appreciate the force of this claim the plaintiff was permitted to show the quantity of alcohol in certain

Fourth Department, March, 1910.

[Vol. 137. well-known beverages which were specifically defined to be liqnors in the act. The jurors may possibly have been assisted to some extent by this proof in determining whether Peruna might be used as a beverage,

The evidence, however, was unimportant, and, even if objectionable, could not have been harmful. The quantity of alcohol in the mixture was not controverted. The position of the defendants was that the addition of the drugs to the mixture made it a proprietary medicine and a remedy in the treatment of certain specific diseases. The stimulating effect of the alcohol was not lessened by the drugs. If the ingredients, which it is claimed gave medicinal value to the compound, were eliminated, it could not be claimed that the alcohol, although diluted with water, was not liquor within the meaning of the act.

The proof was not directed to the intoxicating properties of Peruna, or at least only incidentally. One of the tests applied to any mixture for the purpose of ascertaining whether it is liquor within the meaning of the Liquor Tax Law is the quantity of alcohol it contains. When there is found in any preparation twentyseven per cent of alcohol and seventy-three per cent of water it is clear it must be a liquor within the act unless its effect is destroyed or largely neutralized by its mixture with other ingredients, and that was not the effect produced by the cubebs, corydalis formosa and the other component parts of Peruna.

In People v. Cox (106 App. Div. 299) the defendant was convicted of selling liquor without a license where the offense charged consisted of the sale of one pint of a liquor “ Maltrose,” although it contained only about one per cent in volume of alcohol.

The defendants, in support of their claim that Peruna was a proprietary medicine, endeavored to show the percentage of alcohol in tincture of arnica and other preparations recognized as a standard medicine in the United States Dispensatory, and this evidence was properly excluded. Each of these preparations, although designated as a medicine in the dispensatory mentioned, may have been liquor within the compass of the Lignor Tax Law. After all, the only question the jury was interested in was the character of the Peruna sold by the defendants to Pollard, and its component parts were not in controversy to any extent.

App. Div.]

Fourth Department, March, 1910. The counsel for the defendants endeavored to show that they acted in good faith in selling the Peruna, believing it was a medicine. The action is on contract to recover damages for breach of its conditions and the amount of the damages is fixed and liquidated by the agreement itself. (Cullinan v. Burkard, 93 App. Div. 31, 33; Lyman v. Shenandoah Social Club, 39 id. 459; Lyman v. Perlmutter, 166 N. Y. 410.)

The question of intent is, therefore, unimportant. The act is a tax measure levying taxes at designated rates upon specific grades or kinds of the business of trafficking in liquors. The defendants, upon the payment of seven dollars and fifty cents, were granted perinission to sell liquors only upon the written prescription of a regularly licensed physician, and alcohol to be used for medicinal or mechanical purposes without a prescription, and the tax imposed is small by reason of these restrictions. If a sale of liquors or alcohol is inade not within the privilege granted the conditions of the bond are violated and an action for the damages sustained may then be maintained.

The findings of the jury in this case establish that the Peruna sold was not for medical purposes, but was a beverage salable only because of the quantity of alcohol contained in it.

We think the other exceptions discussed in the brief of the appellants' counsel do not constitute reversible error.

The judgment should be affirmed, with costs.

All concurred.
Judgment and order affirmed, with costs.

Earl A. CASE, Respondent, v. Bert L. CASE, Appellant.

Fourth Department, March 9, 1910. Contract — parent and child — agreement to support parent in consider

ation of conveyance — when promise inures to benefit of grantor measure of damages.

A promise by a son to support his aged mother for life, made in consideration of

a conveyance of lands from another brother who was then supporting the mother from whom he had received the lands in consideration of support,

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