Orcutt v. Nelson

Shaw, C. J.

This action is brought to recover the price of brandy and other spirituous liquors, alleged to have been sold by the plaintiff to the defendant, since the passage of the act of 1852, c. 322, and the defence is founded on § 19 of that statute. The provision stands thus: “ No action of any kind shall be had *541 or maintained, in any court in this commonwealth, for the recovery or possession of intoxicating liquors, or the value thereof, except such as are sold or purchased in accordance with the provisions of this act.”

It is very manifest that this statute does not prohibit all actions for the value of liquors; the act itself contains some qualifications. The question is, what are the true limitations ? It has been strongly intimated, if not decided, that it does not prohibit an action of replevin or trover to recover liquors wrongly taken or detained, or their value in damages. Fisher v. McGirr, ante, 47. Other cases may easily be imagined, where' it would not apply. Liquor sold by a licensed manufacturer, to be exported, is a familiar instance. Again; suppose a ship master should take a cargo from France to New Orleans, consisting in part or in whole of brandy and wine, and there sell it, and purchase a cargo of cotton for Boston. Could he not have an action in the courts of this state for brandy so sold ? The words are, “ except such as are sold or purchased in accordance with the provisions of this act.” It cannot be limited to sales by and to town agents; such a restriction would give an operation to the act much beyond the apparent intent of the legislature. Are not all sales made in accordance with the act, if they are not prohibited by the terms of the act, or by necessary implication from those terms It cannot be presumed that the legislature intended to extend their prohibition beyond this, and give the enactment an extraterritorial operation, to prohibit and vacate sales made out of its territorial jurisdiction. The court are therefore of opinion that a sale of liquors in Connecticut, without any fraudulent view to their resale in Massachusetts, contrary to law, was not unlawful, and that an action may be maintained, in this commonwealth, for the price of liquors so sold.

The remaining question is, whether the contract of sale, effected by correspondence, was made and completed in Massachusetts. This is a mixed question of law and fact. It appears that the defendant, at Colerain, addressed a letter by mail to James F. Orcutt, a brother of the plaintiff, at Hartford, Connecticut, containing an order for the liquors; that James had *542 quitted the business, and the plaintiff had succeeded him, and that the letter was handed to the plaintiff; that he put up the goods according to the order, directed them to the defendant at Greenfield by the railroad cars, and addressed a letter to the defendant at the neighboring town of Colerain, informing him that he had supplied the goods in place of his brother; that the defendant thereupon proceeded to the railroad station, paid the freight, and took the goods home to his own house. We lay out of the case the testimony of Thomas R. McGee, because the court instructed the jury that if the facts testified of by him were believed, the defendant would be entitled to a verdict; the jury, by their verdict for the plaintiff, in effect found that he was not entitled to credit. There is therefore no evidence, that the order for the liquors was furnished by the original correspondent, James Orcutt, or that the plaintiff offered to take back the goods, or requested the defendant to retain them on storage on his account.

Independently of those facts, it is the case of a country merchant, sending an order for goods to a person supposed to be in business; but in consequence of a change, the order is executed by another person. Upon this alone, the defendant would not have been bound, because he had made no proposal to the plaintiff, and he had a right to decide for himself with whom he would deal. But on being notified of this change, he assents to it and ratifies it; such ratification relates to the original order, and gives it the same effect, as if originally addressed to him. The letter accompanying the invoice, addressed to the defendant by the plaintiff", distinctly informed the defendant of the execution of the order by the plaintiff, and of his forwarding of the goods by the railroad to Greenfield. The receipt of the goods at Greenfield, pursuant to this notice, and payment of the freight, are decisive proof of the assent of the defendant to the change in the execution of the order, and a ratification of the act of the plaintiff. It then becomes the ordinary case of a contract of sale, where goods are ordered by one desiring to purchase of another, at a distance, to be forwarded, and there is no special order or particular usage to the contrary, a delivery to a common "carrier completes the contract of sale, vests the prop *543 erty in the vendee, and consequently the goods, during the transit, are at the risk of the vendee. The only question there can be, is whether the sale was complete, before the defendant gave his assent to the change in the execution of the order, and if that assent completed the contract, whether, as that was given , in Massachusetts, it might be construed to be a sale there. If this were an agreement only, a mere executory contract, taking its effect from the meeting of the two minds, it might be, and sometimes is, a difficult question, to determine the time and place at which the agreement is complete and binding, especially where a contract is effected by correspondence. But here the question is of an executed contract, of a sale made, by which a right of property has passed. Now the law is settled, that however the negotiation is conducted, the sale is complete and the property passes by delivery, and delivery to the carrier is in law a delivery to the vendee. Were it otherwise, it might be contended, had the original order been executed according to the proposal contained in it, that as the order is an essential part and the foundation of the contract of sale, and was written in Massachusetts, the sale was made in Massachusetts; which could not be maintained. By considering the defendant’s assent to the substitution of the plaintiff for his brother, as the seller of the goods, as relating back, and qualifying the original order, the sale by the plaintiff to the defendant was complete, when the goods were delivered on board of the cars, to be forwarded to the defendant. The instructions to the jury were conformable to these views ; it is not necessary to state them at large.

Exceptions overruled.