Opinion
Decided June, 1879.
A sale of spirituous liquors, to be forwarded to the purchaser in this state by railroad, made by a licensed dealer in Boston, upon an order taken in this state by an agent having no authority to make sales, is a sale in Massachusetts; and a note given after the enactment of c. 33, Laws of 1876 (G. L., c. 109, s. 18), for the price of such liquors legally sold before the passage of that act, is valid.
ASSUMPSIT, to recover the amount of a promissory note dated September 29, 1877, given for liquors bought February 24, 1876. Facts agreed. The order for the liquors was taken at Claremont, N.H., by an agent of the plaintiffs', transmitted to the plaintiffs at Boston, and accepted by them. The agent was authorized to receive such orders, but was not authorized to make sales. The liquors, marked with the defendant's name and residence, were sent to the railroad station in Boston by the plaintiffs, the cartage, according to previous custom of the parties, being paid by the plaintiffs and charged in the bill to the defendant, and the plaintiffs had nothing more to do with the liquors after they were deposited at the railroad station in Boston. The plaintiffs were licensed to sell spirituous liquors in Massachusetts.
Colby, for the plaintiffs.
Parker, for the defendant.
It has been held, in numerous cases, that when an order is given in this state for the purchase of spirituous liquors to be delivered in another state, the place of delivery is to be regarded as the place of sale; and if such sale is valid by the laws of the place of delivery, an action may be maintained here to recover the price of such liquors, notwithstanding the sale is prohibited by the laws of this state. Boothby v. Plaisted, 51 N.H. 436; Garland v. Lane, 46 N.H. 245; Banchor v. Warren, 33 N.H. 183; Woolsey v. Bailey, 27 N.H. 217. It has also been decided that the act of soliciting and receiving such orders in this state, for the purchase of liquors to be delivered in another state, previous to the statute of July 18, 1876 (Laws of 1876, c. 33), prohibiting the taking of such orders, did not invalidate the sale, although the seller knew, or had reason to believe, that the purchaser was intending to sell the liquors in violation of the laws of this state. Corning v. Abbott, 54 N.H. 469; Hill v. Spear, 50 N.H. 253. Upon the authority of these cases, the plaintiffs are entitled to judgment. The sale of the liquors under license in Massachusetts was valid, and the consideration of the note was legal. The act of July 18, 1876, cannot affect orders solicited or sales made prior to its enactment. Rich v. Flanders, 39 N.H. 304.
Judgment for the plaintiffs.
ALLEN, J., did not sit: the others concurred.