
    Bluthenthal & Bickert v. McWhorter.
    
      Action upon a Promissory Note.
    
    1. Intoxicating liquors; irregularity of sale. — A dealer in liquors doing business outside of a prohibition district, who there sells liquor, knowing that the purchaser is buying it for re- ’ . sale within the prohibition district, -may, nevertheless, recover i the purchase price of the liquor, if the liquor is not sold by the purchaser within.the district as intended.
    2. Same; same. — Mere knowledge on the dealer’s part that the purchaser is buying the liquor for the purpose of selling it in the prohibition district, coupled with the sale by the purchaser in such district, does not render the transaction illegal, but to make it illegal there must be in addition, some participation by the dealer in the illegal purpose and act by the purchaser.
    3. Same; same; action for price of liquor sold; sufficiency of plea. In an action on a promissory note, a plea by the defendant which avers that the consideration for the note was spirituous, vinous and malt liquors sold by plaintiff to the defendant, that at the time of said sale there was a law in force prohibiting the sale of such liquors in the county where the purchaser lived, that said liquors. were bought by defendant for the purpose of selling the same in said county in violation of said law, and that plaintiff sold said liquors to defendant with a knowledge that they were to be sold by defendant in violation of said law, is insufficient as a defense to the maintenance of the suit, in that it does not aver that the liquors were sold by the defendant in the district where the prohibition relied on obtained, and does not aver the participation by the plaintiffs in the alleged illegal purpose of the defendant.
    4. Same; same; same. — In an action on a note, a plea averring that it was given for liquors sold by plaintiffs to defendants; that at the time there was a law prohibiting the sale of liquor in L. county; that said liquor was bought by defendant for the purpose of selling the same in L. county, in violation of said law; that there was also in force a law punishing any person who, within the limits of any prohibitory district solicited or received any orders for liquors; and that said orders were received for said liquors by plaintiffs through tneir agent, within the prohibition district above named, in violation of said law, — is bad, because not averring that the orders taken by said agent were for liquor to be shipped or sent into such district.
    5. Same; same; by what law rights of parties determined. — Under the act of Congress known as the “Wilson Act,” providing that all liquors transported into any State shall, on arrival there, be subject to its laws, and shall not be exempt because in original packages, the rights of a Georgia liquor dealer shipping liquors into Alabama pursuant to orders there obtained by a traveling salesman are determinable under Alabama laws.
    6. Action for price of liquors; admissibility of evidence. — In an action on a note which was given for the purchase price of spirituous, vinous or malt liquors sold by plaintiffs to the defendant, where defendant seeks to set up as a defense that the liquors were sold by the plaintiffs in violation of the prohibition law, a letter written by the plaintiffs to defendant stating “We notice that the grand jury reported prohibition a failure in your county. No doubt this will lead to your obtaining a license,” was admissible as tending to show knowledge on plaintiffs’ part that defendant was selling the liquor they were supplying him in violation of law, not only at its date, but also at the time the liquor was sold.
    Appeal from the Circuit Court of Lowndes.
    Tried before the Hon. J. C. Richardson.
    This aetipn was brought by appellants against appellee, and counted upon a promissory note given by appellee to appellants. The defendant pleaded three special pleas, besides the general issue and payment. The third and fourth pleas were as follows: (3.) “That the consideration for the note sued on was vinous, spirituous or malt liquors, which were sold by the plaintiffs to defendant, that ait the time of said sale, there was a law in force prohibiting the sale of such liquors in Lowndes county, Alabama; that said liquors were bought by defendant for the purpose of selling the same in said county, Alabama, in violation of said law, and that plaintiffs sold said liquors to defendant with the knowledge that they were to be sold by defendant in violation of said law.” (4.) “That the 'consideration of the note sued on was spirituous, vinous or malt- liquors, which were sold by plaintiffs to defendant; that at the time of said sale there was a law in force prohibiting the sale of such liquors in Lowndes county, Alabama; that said liquors were bought by defendant for the purpose of selling the same in Lowndes county, Alabama, in violation of said law; that there ivas also a law in force punishing any person, who within the limits of any district in which the sale of spirituous, vinous or malt liquors was prohibited by law, solicited or received any order for spirituous, vinous or malt liquors in any quantity to be shipped or sent into such district must on conviction be fined not less than twenty nor more than one hundred dollars, and that the orders were received for said liquors above named by the plaintiffs through their agent within the prohibition district above named, in violation of said law.”
    To the third plea the plaintiff demurred upon the following grounds: (1.) “Because said plea is no answer to the complaint.” (2.) “Said plea fails to allege facts which show the violation of any law by plaintiffs in the sale of said liquors.” (3.) “Because a sale of liquors as alleged in said plea does not show the violation of any law by plaintiffs or an illegal sale by plaintiffs to defendant.” (4.) “Because said sale fails to show an illegal sale by plaintiffs to defendant.” (5.) “Because said plea fails to show a sale was made by plaintiffs to defendant in any place which the sale of liquors is prohibited.” (6.) “That mere knowledge on the part of the plaintiffs that liquors were bought from them by the defendant for the purpose of selling the same in violation of law is not sufficient to vitiate the sale of said liquors..”
    To the fourth plea the plaintiffs demurred upon the following grounds: (1.) “Because said plea fails to allege facts showing a sale of said liquors by plaintiffs to defendant, at any place prohibited by law.” (2.) “Because said plea fails to show a sale of liquors by plaintiffs to defendant in Lowndes county.” (3.) “Because said plea fail® tó show an illegal sale by plaintiffs to defendant.” (4.) “Because the fact that the defendant bought said liquor for the purpose of selling the same in Lowndes county in violation of law would not affect or vitiate the sale of said liquors by plaintiffs to defendant.” (5.) “Because the violation of a law by plaintiffs’ agent in receiving the orders would not vitiate or affect the sale of said liquors by plaintiffs to defendant.” (6.) “Because said plea fails to show a sale of liquors to defendant by plaintiffs in Lowndes county or within the limits of any district in 'which the sale of spirituous, vinous or malt liquors was prohibited, and the mere fact that plaintiff’s agent took orders for the sale of said liquors by plaintiffs to defendant and plaintiffs received said orders is not sufficient to vitiate the sale of said liquors or affect the enforcement of the payment of the purchase price therefor.” (7.) “Because said plea fails to locate or describe the district in which the solicitation or receipt of said orders by plaintiffs’ agent was prohibited by law.” (8.) “Because said plea seeks to set up two separate and distinct offenses.” (9.) “Because said plea fails to show that these plaintiffs or their agents received orders for the liquors or goods within any district within the limits of which the sale of spirituous, vinous or malt liquors was prohibited by law.”
    Demurrers to these pleas were overruled. Thereupon plaintiff filed three replications to plea No. 4, which were as follows: “Oom.es the plaintiffs and for replication to defendant’s plea No. 4 says, that at the time of the sale of the liquors by them to the defendant they were engaged as merchants in the city of Atlanta, State of Georgia, and conducted a 'business in which they sold liquors at wholesale; that the orders taken or received by them for the liquors from defendant were taken by their traveling, salesman in the county of Lowndes and forwarded to them at Atlanta in said State of Georgia, that said liquors were shipped by plaintiff to said Mc-Whorter and received by said McWhorter in the State of Alabama; and plaintiffs say that no law of the State of Alabama prohibiting the receiving of orders in Lowndes 'County,. by plaintiffs, through their agent, could affect the rights of plaintiffs to recover the purchase price of goods «old since the rights of plaintiffs in such case are subject to the constitutional power of Congress to regulate 'commerce among the several States.” (2.) “And for further replication to plea No. 4, these plaintiffs say that at the time of the sale of the liquors by the plaintiffs to -defendant they were merchants engaged in the wholesale liquor business in Atlanta, in the State of Georgia; that their traveling salesman came into the State of Alabama, and received orders for the liquors from the defendant in Lowndes county; that the plaintiffs’ right to receive orders from the defendant was a right which could not be prohibited or restricted in any manner by the laws of Alabama, since su-cli law would contravene interstate commerce.” (3.) “Foir further replication to plea No. 4 these plaintiffs say that the law alleged by defendant in said plea to have been in force 'at the time of the -sale of said liquors which prohibited the receiving of orders for spirituous, vinous or malt liquors in any district in which the -sale of liquors was prohibited by law could not invalidate or effect the rights of plaintiffs' as in said plea alleged because at the time of the sale of said liquors to defendant these defendants were merchants engaged in the wholesale liquor business in Atlanta, in the State of Georgia, and said orders were taken by their traveling salesman in said Lowndes county, Alabama, from the defendant, and their rights to receive orders was regulated by interstate commerce.”
    Demurrers to these replications were sustained. The special pleas of defendants Nos. 2, 3 and 4 were amended as follows: “By adding the words ‘within two miles of the court house at Hayneville,’ after the words ‘prohibiting the sale of such liquors,’ where they occur in the second plea.” (2.) “By adding the words ‘within two miles of the court house at Hayneville’ after the •words ‘there was a law in force prohibiting the sale of such liquors,’ where they occur in the third, plea.” (3.) “By adding the words, ‘within such prohibition district’ after the words, ‘the purpose of selling the same,’ where they occur in the third plea.” (4.) “By adding the words ‘within two miles of the court house at Hayneville,’ after the words, ‘prohibiting- tbe sale of -such liquors,’ where they occur in the fourth plea.”
    
      In view of tlie opinion a statement of ¡the other facts in the record becomes unnecessary. There were verdict and judgment for defendant, and plaintiffs appeal.
    Lomax, Crum & Weil, for appellant,
    cited Pilgreen v. Btate, 71 Ala. 368; Craig v. Proctor, 6 B. I. 547; Brigham o. Proctor, 14 Gray. 552; Black on Intoxicating Liquors, § 257; Cling v. Fries, 33 Mich. 275; Bibert v. Btate, 40 Ala. 62; Williams v. Hendricks, 115 Ala. 277; Bhackclford v. Citg Council, 110 Ala. 619; Ware v. Hamilton Brown ¡¡Shoe Co., 92 Ala. 145.
    D. M. Powell, contra-,
    cited 1 Wait’s Actions and Defenses, 106-, Pacific C. Co. o. Midlen, 66 Ala. 582; Wads-worth v. Dunham, 117 Ala. 661; Ware v. Jones, 61 Ala. 288; Black on Intoxicating Liquors, §§ 248, 249, 256; Tinker v. Btate, 90 Ala. 639.
   McCLELLA.N, 'O. J.

If A., doing business and 'selling intoxicating liquors outside of a prohibitory district there sells such liquors to B., knowing that the latter is purchasing them for resale within a prohibitory district, but B.’s purpose in this connection is not carried out and the liquors are not resold in such district, A. may recover the price of the goods from B. Plea 3 fails to aver that the liquors constituting the 'Consideration of the note sued on, or any part of them, were sold by the defendant in the district where the prohibition relied on obtained, and was therefore bad. Mere knowledge on the part of A. in the case supposed, that B. is purchasing the liquors for the purpose of selling them in territory where the sale of 'such liquors is prohibited by law, coupled with the sale of them by B. in such territory, will not suffice to render the transaction between A. and B. illegal. In addition there must be some participation by A. in the illegal purpose and act of B.; and while knowledge of such purpose, coupled with its execution on the part of B. may afford a 'basis for inference of participation on A.’s part, i. e. would be evidence tending to sliow such participation, such knowledge of the proposed illegal act is not of itself that participation in it which will avoid B.’s¡ liability to pay üot A. 'for the liquors. The third plea, therefore, should have averred not only illegal sale by the defendant, but participation by the plaintiffs. — Black Law of Intoxicating Liquors, §§ 269, 270; 17 Am. & Eng. Ency. Law, pp. 312-13. Of course, the averments which we hold were necessary to the third plea, would not have been had the plea averred a sale by plaintiffs to defendant within the prohibited district.

Plea 4 does not bring the sale by plaintiffs to defendant within the terms of the 'Statute intended to be pleaded. It should have been averred that the order taken by plaintiff’s agent within the prohibited district was for liquor “to be shipped or sent into such district.” Foir aught that appears by the plea, except by averment of a mere conclusion that the -order was taken in violation of the statute, the order taken in the district was for liquors to be shipped or sent elsewhere than into the district. This fourth plea is not open to other objections taken by the demurrer. It was not essential to the defense intended to be presented by it that defendant should have sold the liquors so ordered, nor that plaintiffs should have had knowledge that defendant Intended to sell the goods within the district, nor that plaintiffs should in any way have participated in sales by defendant.

The replications of plaintiffs to pleas 2, 3 and 4 were bad, and the demurrer to them was properly sustained. Plaintiff’s rights or want of them is determinable by the laws, common and statute, of the State. If the facts set up in the replication would ever have been of importance, they are not so under the act of 'Congress known as The Wilson Act. — 17 Am. & Eng. Ency. Law, pp. 293, et seq.

The reference in plaintiff’s letter to defendant to the prohibition law of force at defendant’s place of business, viz.: “We notice in the newspapers to-day that the grand jury reported prohibition a failure in your county. No doubt- this will lead to your obtaining a license,” tended to show knowledge on plaintiffs’ part that defendant was selling liquors they were supplying him in violation of law, not only at the date of the letter, but also at the previous time when the liquors constituting the consideration of the note sued on were sold to him; and the court did not err in receiving the letter in evidence.

We deem it unnecessary to discuss the rulings of the court upon requests for instructions: What we have said above will suffice for the court’s guidance upon another trial.

For the errors committed in overruling the demurrers to the third and fourth pleas, the judgment ol the circuit court is reversed. The cause is remanded

Reversed and remanded.  