Jacobs v. Danciger

Full title: FLOYD E. JACOBS, Administrator of Estate of A. HATTREM ET AL., v. ABE…

Court: Supreme Court of Missouri, Division One

Date published: Jul 28, 1931

328 Mo. 458 (Mo. 1931)

41 S.W.2d 389

Opinion

July 28, 1931.

1. SALE: Quantity: Trade Usage: Hops: Bale. Valid usage forms a part of a contract of sale. Valid usages concerning the subject-matter of a contract, of which the parties are chargeable with knowledge, are by implication incorporated therein, unless expressly or impliedly excluded by its terms. A contract by which the vendor agreed to sell and the vendee to buy one hundred and fifty bales of hops at eighty-five cents per pound, was not void under the Statute of Frauds for failure to fix the quantity, for by valid trade usage a bale of hops is fixed at two hundred pounds.

2. ____: ____: ____: Verbal Agreement. If the quantity of hops purchased was fixed by the written contract, an oral agreement fixing the amount would not authorize a verdict for a different amount. If the contract fixed the quantity at one hundred and fifty bales of hops, which by valid trade usage meant two hundred pounds per bale, a verbal agreement entered into at the time fixing the number of pounds to be purchased did not alter or vary the contract, but the contract called for the delivery of thirty thousand pounds.

3. ____: For Unlawful Purposes: Hops: Home Brew: Instruction. In an action by the vendor to recover damages from the vendee for a breach of a contract for the sale of hops, wherein the defendant pleaded in his answer that the plaintiff knew that defendant intended to sell the hops for use in the manufacture of "home brew" and represented to him that such use would be lawful and had been held to be lawful by the courts, and that in reliance upon such false representations he entered into the contract, and wherein defendant, on direct examination, testified that plaintiff told him of Federal court decisions upholding the sale of "home brew" packages and expressed the opinion that such business was lawful and that he relied upon said statements, but on cross-examination testified that he did not rely on those statements, an instruction for plaintiff telling the jury to disregard the defense that the sale of the hops was induced by such representations unless they found from the evidence that such statements were made by plaintiff and that defendant relied upon such representations and except for such reliance would not have entered into the contract to purchase the hops, was not erroneous. The instruction was not a direction to the jury to disregard the statements as evidence in considering the issue of solicitation and inducement, and did not direct a verdict for plaintiff, and did not direct them to disregard these statements as evidence in considering other issues: it only dealt with the issue of false representations, and could not have been misunderstood by the jury.

4. ____: Hops: Intended Unlawful Use: Mere Knowledge. The act of Congress declaring that it shall be unlawful to sell any substance intended by the seller for use in the unlawful manufacture of intoxicating liquor, knowledge by the seller alone that hops he agreed to sell would be used in the making of "home brew" is not evidence from which the jury may find that the seller intended them to be used in the manufacture of intoxicating liquor. The act does not expressly provide that mere knowledge by the seller of the intended use of the hops by the purchaser would be unlawful, but it fixes the intention of the seller in making the sale as the test of legality. The word "intended" was not used in the sense of mere knowledge; it means more than mere knowledge: it means knowledge of the seller of the intended unlawful use, accompanied by some act on his part indicating consent or encouragement to such use.

5. BILL OF EXCEPTIONS: Settled by Judge: Challenge on Appeal. Where the bill of exceptions was settled and signed by the trial judge, and shows that an exception was saved to an instruction at the time it was given, this court must accept as a fact that an exception was saved. And evidence heard by the trial judge before he signed the bill on the disputed question whether an exception was saved to the giving of the instruction is no part of the proceedings of the trial and no part of the bill of exceptions; and although the trial court after hearing the evidence decided that an exception was saved, and then signed the bill with the evidence heard on the question incorporated therein, this court has no authority to review the evidence and determine that the question was wrongfully decided.

6. MOTION FOR NEW TRIAL: Instructions: Challenge. A motion for a new trial in a civil case charging that the court erred in giving instructions numbered 1, 2, 3, 4, 5 and 6 "and all other instructions at the request of plaintiff" and "in giving instructions of its own motion," sufficiently challenges the action of the trial court in giving instructions.

7. INSTRUCTION: Credibility of Witnesses. Conflict in the evidence authorizes an instruction on the credibility of witnesses.

8. ____: ____: Wilful False Swearing. An instruction on the credibility of witnesses which does not require the jury to find that a witness has wilfully or intentionally sworn falsely as to a material matter before them, but authorizes the jury nevertheless to reject the whole or any part of such witness's testimony, is erroneous. In failing to require the element of wilful or intentional false swearing, the long-settled law of this State is violated.

Appeal from Jackson Circuit Court. — Hon. Ralph S. Latshaw, Judge.

REVERSED AND REMANDED.

Henry L. Jost and Ringolsky, Friedman, Boatright Jacobs for appellants.

(1) Mere knowledge on the part of plaintiff's that defendants were purchasing the hops for the express purpose and with the specific intent to place same in packages, together with malt, syphon, clarifier and caps, which packages were designed, sold and intended to be used for making intoxicating home brew beer, made the sale and the contract therefor illegal and to instruct the jury otherwise was error. This is true from three separate and distinct view-points: (a) From early times it has been held that mere knowledge by seller that the purchaser intended to use the article purchased for an illegal purpose and for the commission of a crime, made the contract illegal in cases where the contemplated act was a felony or malum in se, but the principle was not applied where the act was a misdemeanor or malum prohibitum. The distinction, being unfounded in reason and altogether illogical, has, accordingly, been abandoned and it is now held that, if the purchaser is buying for the purpose and with the intent of committing a crime with the purchased article, and such purpose and intent is known to the seller, such fact makes the contract an illegal one, regardless of whether the contemplated act is classified as a felony or misdemeanor or malum in se or malum prohibitum. Mitchell v. Bacon, 49 Mo. 474; Howell v. Stewart, 54 Mo. 400; Sprague v. Rooney, 82 Mo. 493; Sprague v. Rooney, 104 Mo. 349; St. Louis Fair Assn. v. Carmody, 151 Mo. 566; State ex rel. v. Fire Ins. Co., 306 Mo. 537; State ex rel. v. Daues, 315 Mo. 22; Haggerty v. Ice Mfg. Co., 143 Mo. 238; 2 Page on Contracts (2 Ed.), sec. 1108. (b) The National Prohibition Act forbids and makes it a crime for anyone to sell any substance or article with intent same shall be used in making an intoxicating liquor as therein defined. Consequently, if plaintiffs sold the hops and made the contract therefor with intent the hops should be used for making intoxicating liquor, then plaintiffs committed a crime and the sale and contract of sale were the crime. Knowledge by the seller that the purchaser is buying for the purpose of having the hops used for making intoxicating liquor necessarily imputes to the seller an intent on his part that they shall be so used. Such knowledge on the part of seller would make the seller guilty of the substantive offense. Therefore it was error to instruct that mere knowledge would not be sufficient to make the contract illegal. Sec. 18, Title II, National Prohibition Act, U.S.C. title 27, sec. 30; Weinstein v. United States, 293 F. 388; Pattis v. United States. 17 F.2d 562; Anstess v. United States, 22 F.2d 594; Massei v. United States, 295 F. 683; Reynolds v. United States, 282 F. 256. (c) Under the Criminal Code of the United States, if two or more persons conspire together to commit an offense against the United States by violating any statute of the United States and either one does any act to effect the object of such conspiracy, all such persons are punishable by a fine of not less than $10,000 or imprisonment for not more than two years. The Criminal Code also provides that whoever aids, counsels, induces or procures the commission of an offense defined in any law of the United States is a principal. Consequently, if plaintiffs, merely knowing that defendants were purchasing said hops to place same in packages with other ingredients and sell same for the purpose and with the intention that they should be used in the manufacture of intoxicating beer and with such knowledge nevertheless sold and agreed to sell the hops to defendants, they thereby not only committed the substantive offense but also were guilty of a conspiracy with defendants to violate the law and commit an offense against the United States. In such event even if the ancient rule as to the cases in which mere knowledge makes the contract an illegal one be followed, still mere knowledge in this case, under these circumstances, would make the contract illegal because the conspiracy was a felony. Sec. 37, Criminal Code United States, U.S.C. title 18, sec. 88; Sec. 332, Criminal Code United States, U.S.C. title 18, sec. 550; Jones v. United States, 11 F.2d 98; Pattis v. United States, 17 F.2d 562; Costal v. United States, 13 F.2d 843. (2) A jury cannot disregard the testimony of any witness merely because such witness has not correctly stated the facts and the jury must be required to find that the witness has willfully or intentionally sworn falsely before such witness's testimony can be disregarded. To instruct the jury otherwise is erroneous. Poague v. Mallory, 208 Mo. App. 395; Jackson v. Powell, 110 Mo. App. 249; State v. Elkins, 63 Mo. 159. (3) An instruction on credibility of witnesses should not have been given under the facts in this case. Bank v. Murdock, 62 Mo. 70; Keeline v. Sealy, 257 Mo. 498. (4) It is not a sufficient compliance with the Statute of Frauds to designate the quantity of hops sold and purchased as 150 bales. Whaley v. Hinchman, 22 Mo. App. 483; Weil v. Willard, 55 Mo. App. 376; Fox v. Courtney, 111 Mo. 147; Kelly v. Thuey, 143 Mo. 422; Boyd v. Paul, 125 Mo. 9; Ringer v. Holtzclaw, 112 Mo. 519; Johnson v. Fecht, 185 Mo. 335; Cement Materials Co. v. Kries, 261 Mo. 160; Shy v. Lewis, 12 S.W.2d 719; 27 C.J. 270, sec. 321; Reigart v. Coal Coke Co., 217 Mo. 142; Tracy v. Aldrich, 236 S.W. 347; Allen West Commission Co. v. Richter, 286 Mo. 691; Crane v. Berman, 297 S.W. 423; Gray v. Cooper, 274 S.W. 941. (5) Parol evidence is admissible to show that a material oral stipulation and agreement between the parties was not included in the writing in order to show that the same does not meet the requirements of the Statute of Frauds. 27 C.J. 385, sec. 478; Smith v. Shell, 82 Mo. 215; Soper v. Investment Co., 253 S.W. 796. (6) Where plaintiff voluntarily concedes that the contract as reduced to writing does not in and of itself meet the requirements of the Statute of Frauds and permits testimony to be introduced tending to show that an agreement was had between the parties as to the amount of merchandise sold and purchased, then in such case the jury should be instructed that if it finds such agreement existed, its verdict must be for the defendant. Smith v. Shell, 82 Mo. 215; Soper v. Investment Co., 253 S.W. 796; Walker v. Auto Co., 191 S.W. 1061. (7) Where a contract expressly states that the writing constitutes the entire agreement, no oral testimony either of custom or oral agreement can be introduced. 22 C.J. 1253, sec. 1664. (8) Where the evidence offered to show a custom in fact shows that the practice is that bales of hops vary greatly in weight depending upon the precise size of the bale, the moisture content of the hops and the pressure used in baling, and that bales of hops rarely, if ever, weigh exactly 200 pounds, but vary all the way from 180 to 280 pounds, such evidence as a matter of law, when offered by the plaintiff, conclusively disproves the existence of any such custom. A practice in order to become a custom must be definite, fixed, certain and uniform, and mere loose and variable practice does not constitute a custom. 17 C.J. 453, sec. 10; Ehrlich v. Ins. Co., 103 Mo. 238; Leonard v. Dougherty, 296 S.W. 263; Staroske v. Publ. Co., 235 Mo. 75.

J.M. Johnson and Charles H. Thompson for respondents.

(1) The written contract did not limit or define the use which the vendees would or might make of the commodity sold. The commodity was not contraband, but was lawful and, at the time the contract was entered into, neither party knew or believed that its use in the manufacture of "home brew packages." if such use were intended, would be unlawful. If the vendees feared it might be declared unlawful they should have protected themselves by an appropriate stipulation in the contract. There is no ground on which to predicate the contention of an intent on the part of the vendors to violate a positive law. Michaels v. Bacon, 49 Mo. 474; Howell v. Stewart, 54 Mo. 400; Kerwin Co. v. Doran, 29 Mo. App. 397; Holman v. Johnson, 1 Cowp. 341; Curran v. Downs, 3 Mo. App. 468; St. Louis Fair Assn. v. Carmody, 151 Mo. 566; Tucker v. Duckworth, 107 Mo. App. 236; Sawyer v. Sanderson, 113 Mo. App. 233; Insurance Co. v. Distilling Co., 182 F. 593; Waugh v. Beck, 114 Pa. 422; Ashford v. Mace, 103 Ark. 114; 2 Page on Contracts (2 Ed.) sec. 1109; 23 R.C.L. 1317, sec. 134; 13 C.J. 517, sec. 476; Tracy v. Talmage, 14 N.Y. 162; Stroh Products Co. v. Davis, 8 F.2d 773. (2) If there had been no such intent at the time of entering into the contract, there being no provisions therein specifying the use to be made of the commodity, the vendees were at liberty to devote their purchase to a lawful use, and the contract being executory at the times of its origin and breach, defendants cannot escape liability on the excuse that what they thought was an innocent use at the time they signed the contract turned out to be an unlawful use. Authorities supra. (3) Instruction 2, given at the request of plaintiffs, properly declared the law. Conceding for argument that Hattrem knew the hops were intended by defendants for use in the manufacture and sale of "home brew" packages his knowledge alone would not constitute participation by plaintiffs in a plan of defendants to commit an offense against a positive law. Authorities supra. (4) To invalidate the contract it was necessary that Hattrem have knowledge not only of the fact that defendants intended to use the hops in the manufacture and sale of "home brew" packages, but also to know that such packages used by the customer would produce an intoxicating beverage; that such use would violate the Prohibition Act and that to aid in a commission of such offense, he did something, or agreed to do something, beyond the mere sale of a lawful commodity, to aid and assist in the perpetration of such offense. Authorities supra. (5) The written contract being definite as to time, place, quantity, quality and price, sufficiently complied with the Statute of Frauds. Under the proof of trade custom and usage, that a bale of Yakima or Oregon hops meant two hundred pounds, the contract was made definite as to quantity and resort to parol evidence to piece out the contract was not required. 17 C.J. 492, 495, 503-4; Ellis v. Casey Co., 4 Ala. App. 518; Brewer v. Horst, 127 Cal. 643, 50 L.R.A. 24; Miller v. Stevens, 100 Mass. 518; Taylor v. Briggs, 12 Eng. Com. L.R., 2 Carr Payne, 525; Harris v. Vallee, 29 Ga. App. 769; Nut House v. Oil Mills, 102 Wn. 114; Wright v. Grocery Co., 105 Wn. 383; Darnell v. Lafferty, 113 Mo. App. 292; Soutier v. Kellerman, 18 Mo. 509; Baer v. Glaser, 90 Mo. App. 289; Evans v. Brass Mfg. Co., 118 Mo. 548; Jungkuntz v. Carter, 254 S.W. 359; Dinuba Baking Co. v. Grocery Co., 182 S.W. 1036; Carter v. Western Tile Co., 184 Mo. App. 583; Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629; Asbury v. Evans, 182 S.W. 785; Wallace State Bank v. Corn Exchange Bank, 282 S.W. 86; Colorcraft Co. v. Am. Packing Co., 216 S.W. 831. (6) There being a sharp conflict in the evidence over material facts and room for a reasonable inference that witnesses had sworn falsely respecting such facts, an instruction on credibility of witnesses was proper. Houser v. Ry. Co., 5 S.W.2d 65; Dawson v. Flinton, 195 Mo. App. 75. (7) Regardless of the general practice in the Circuit Court of Jackson County respecting the saving of exceptions to instructions, the fact that the trial judge followed a different practice and that in compliance with such practice the respective counsel did dictate to the court reporter for the record their specific exceptions to rulings of the court on instructions and that no exception was saved by defendants to Instruction 9; and that afterwards in their motion for new trial defendants specified the numbers of the instruction they claimed were erroneous, without specifying Instruction 9, precludes them from claiming error in the giving of that instruction. The trial court must be given an opportunity to correct any prejudicial error committed by him against the losing party and no such opportunity having been given in this case, defendants are foreclosed. (8) Despite the view expressed in the Missouri cases cited by counsel respecting the indispensability of the qualifying adverb "wilfully" or "intentionally," the use of such adverbial qualification is pure tautology and, therefore, unnecessary. From time immemorial the adjective "false" and the adverb "falsely" when applied to persons or human conduct, have carried with them the meaning of deception, pretense or intentional perversion of the truth. 25 C.J. 575; Hatcher v. Gunn, 102 Iowa 411, 36 L.R.A. 689; State v. Brady, 100 Iowa 191, 36 L.R.A. 693; People v. Rigetti, 66 Cal. 184; People v. Luchetti, 119 Cal. 501; State v. Elkins, 63 Mo. 166. (9) Moreover, the reasoning of this court in State v. Elkins, 63 Mo. 159, 166, while apparently sound and convincing, on close analysis will be found defective in reason and logic. A witness who testifies untruthfully respecting a material fact, which means, of course, a fact which may determine the result of the trial, howsoever innocent and upright he may be, discloses a fault in perception, understanding or memory which entitles an ordinary man in the place of a juror to reject his testimony respecting other material facts. Consequently, as to the credibility of a witness who has given such testimony it can make no practical difference whether he was sincere or deliberately misstated the facts.

GANTT, P.J.

This came to me on reassignment. It is an action by a vendor against a vendee to recover damages for breach of contract. On April 23, 1920, A. Danciger, representing the defendants, of Kansas City, Missouri, entered into a written contract at Kansas City, Missouri, with A. Hattrem, representing the plaintiffs, of Salem, Oregon, wherein it was agreed that plaintiffs would sell and defendants would buy 150 bales of choice brewing Yakima or Oregon hops of the crop of 1920 at 85 cents per pound, delivered f.o.b. cars at Kansas City, Missouri — 50 bales in October, 50 bales in November, and 50 bales in December, 1920. Thereafter the market price of hops declined to 47 cents per pound. On September 23 and 24, 1920, defendants notified plaintiffs that they would not receive said hops if shipped and that they would not comply with the terms of the contract. Under this contract no hops were shipped by plaintiffs to defendants.

Thereafter this suit was instituted. The petition is conventional with an allegation that by usage of trade, the term "bale of hops" in the contract meant 200 pounds of hops and was so understood by plaintiffs and defendants at the time of execution of the contract.

Defendants answered by admitting the execution of the contract and alleging that it was void under the Statute of Frauds for failure to fix the quantity of hops sold, and also alleging that the contract was void because the hops were sold by plaintiffs with knowledge that defendants intended to sell the hops in packages containing certain appliances and other substances to be used in the manufacture of "home brew," and that plaintiffs with this knowledge, aided and abetted defendants in their intent to violate said law. The reply was a general denial. On the trial the jury returned a verdict for $9,000. Judgment accordingly, and defendants appealed.

1. Defendants contend the quantity of hops is not fixed by the contract, and for that reason the contract is void under the Statute of Frauds. The quantity is fixed at 150 Quantity: bales at 85 cents per pound. There was evidence Valid Usage. tending to show, and the jury found, that by trade usage a bale of hops weighed 200 pounds. The evidence was admissible under the well settled rule, which follows:

"Valid usages concerning the subject-matter of a contract, of which the parties are chargeable with knowledge, are by implication incorporated therein, unless expressly or impliedly excluded by its terms, and are admissible to aid in its interpretation, not as tending in any respect or manner to contradict, add to, take from, or vary the contract, but upon the theory that the usage forms a part of the contract." [17 C.J. 492, 495, 503-4.]

The rule is approved by decisions of the appellate courts of the country. [Ellis v. Casey Co., 4 Ala. App. 518; Brewer v. Horst Lachmund Co., 127 Cal. 643, 50 L.R.A. 24; Miller v. Stevens, 100 Mass. 518; Taylor v. Briggs, 12 Eng. C.L.R. 245, 2 Carr. Payne, 525; Harris Co. v. Vallee Co., 29 Ga. App. 769; Nut House v. Pacific Oil Mills, 102 Wn. 114; Wright v. Seattle Grocery Co., 105 Wn. 383; Soutier v. Kellerman, 18 Mo. 509; Baer v. Glaser, 90 Mo. App. 289; Evans v. Western Brass Mfg. Co., 118 Mo. 548, 24 S.W. 175; Jungkuntz v. Carter, 254 S.W. 359; Dinuba Farmers' Union Packing Co. v. Anderson Grocery Co., 182 S.W. 1036; Viernow v. City of Carthage, 123 S.W. 67; Carter v. Western Tie Timber Co., 184 Mo. App. 523, 170 S.W. 445; Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629, 78 S.W. 1014; Asbury v. Evans, 182 S.W. 785; Wallace State Bank v. Corn Exchange Bank, 282 S.W. 86; Colorcraft Co. v. American Packing Co., 216 S.W. 831.] This trade meaning of the word "bale" became a part of the contract and fixed the quantity purchased at 30,000 pounds.

In this connection defendants challenge the refusal of an instruction, which follows:

"The court instructs the jury that if you believe from the evidence at the time the contract of April 23, 1920, Concurrent was entered into by plaintiffs with the defendants, Verbal the number of pounds of hops agreed to be purchased Agreement. by the defendants from the plaintiffs was verbally agreed upon, then your verdict must be for the defendants."

If the quantity purchased was fixed by the contract, a verbal agreement, if any, fixing the amount would not authorize a verdict for defendants. The court ruled correctly in refusing the instruction.

II. Defendants next challenge the giving of an instruction which follows:

"Although you may believe from the evidence that at the time of entering into said contract of sale in evidence the said A. Hattrem represented and stated to the defendants that the sale of said home brew packages which defendants were Representations selling and intended to continue selling on the That Use Is market was not in violation of the law, and that Lawful. the courts had already decided it was not in violation of the law; unless you further believe and find from the evidence that defendants relied in part upon such statement and representation, and except for such relying, if any, would not have entered into such contract for the purchase of hops, you will disregard the defense that the sale of said hops was induced by such representations or statements, if any."

In the amended answer on which the case was tried, it was alleged "that plaintiffs represented and informed and counseled defendants that courts had decided it was legal and they knew it was legal to sell packages mentioned containing hops for the purposes mentioned. That defendant relied on said representations; that same were false and the signature of defendants was obtained by plaintiffs making said false representations."

On this issue the defendant, Abe Danciger, who represented the defendants, testified that Hattrem, who represented the plaintiffs, told him of Federal court decisions upholding the sale of "home brew" packages, and expressed the opinion that such business was lawful. He also testified that he relied on said statements. On cross-examination, he gave testimony indicating that he did not rely on those statements. Thus an issue of fact was raised for submission to the jury. Defendants contend that the instruction was a direction to the jury to disregard those statements as evidence in considering the issue of solicitation, aiding, abetting and counseling on the part of Hattrem. The instruction did not direct a verdict for plaintiffs and did not direct the jury to disregard those statements as evidence in considering other issues. The instruction only dealt with the issue of false representations and could not have been misunderstood by the jury.

III. Defendants next challenge the giving of another instruction, which follows:

"The jury are instructed that mere knowledge alone without assent thereto or participation therein on the part of the sellers at the time of entering into a contract for the sale of a commodity that their purchaser intended to use Mere Knowledge such commodity as an ingredient in a mixture, the of Intended sale of which would be a violation of law, would Unlawful Use. not in itself invalidate such contract; there must be some act or agreement or consent of the sellers in furtherance of such unlawful purpose. If you find and believe from the evidence that at the time of entering into the contract of sale, sellers did not know that the defendants intended to use said hops in the manufacture and sale of home brew packages in violation of law and did nothing or agreed to do nothing which would be in furtherance of such purpose, nor consent to such violation, you will disregard the defense that the contract in evidence was a contract in violation of the law."

There was evidence tending to show that plaintiffs did not know, at the time of the execution of the contract, that defendants intended to sell the hops to be used in the manufacture of "home brew." There was also evidence tending to show they knew at said time of said intention of defendants, and encouraged them in purchasing the hops for such purpose.

Defendants contend that the sale with mere knowledge on the part of plaintiffs of its intended use by defendants was a violation of Section 18, Title II, National Prohibition Act; U.S.C.A., Title 27 Section 30, and for that reason contend the contract is invalid. The section follows:

"It shall be unlawful to advertise, manufacture, sell, or possess for sale any utensil, contrivance, machine, preparation, compound, tablet, substance, formula, direction, or recipe advertised, designed, or intended for use in the unlawful manufacture of intoxicating liquor."

Under this statute, "a design or intent to use the things sold in an unlawful way must be the design or intent of the seller, and not of the buyer." [Stroh Products Co. v. Davis, 8 F.2d 773, l.c. 776; Hammerle v. United States, 6 F.2d 144 (C.C.A. 6); Weinstein v. United States, 293 F. 388 (C.C.A. 1); United States v. Horton (D.C.), 282 F. 731.] And the word "design" as used means "things which are planned for the sole, or at least for the dominant, purpose of making intoxicating liquors." [United States v. Cans Acme Malt Extract, 28 F.2d 213.] Hops have many legitimate uses and do not fall within the meaning of that word. Therefore, the pertinent part of the statute follows:

"It shall be unlawful to . . . sell . . . any . . . substance (hops) . . . intended (by the seller) for use in the unlawful manufacture of intoxicating liquor."

Defendants argue that under the statute, knowledge alone is evidence from which the jury may find that plaintiffs intended the hops for use in manufacturing intoxicating liquor. We do not find that the question has been ruled by either the state or federal courts.

It is not expressly provided in the statute that mere knowledge by the seller of the intended use of the substance by the purchaser is a violation of law. It seems if the Congress had so intended, it would have provided that it shall be unlawful to knowingly sell any substance intended by the purchaser for such use. It did not do so, but fixed the intention of the seller in making the sale as the test of legality. For this reason we think the word "intended" was not used in the sense of mere knowledge. It means more than mere knowledge. It means knowledge of the seller accompanied by some act on his part indicating consent to or encouragement in such use. We are encouraged in this view by the general rule, which follows:

"The authorities are not in entire accord as to the effect of the seller's knowledge merely that the buyer intends to use the subject-matter of the sale for an unlawful purpose. The better rule is that a contract of sale is not rendered illegal merely because the seller had knowledge of such fact if he did not participate in the intent to commit the illegal act or by some affirmative act aid in the furtherance of such unlawful purpose or have some interest in the performance of the illegal act. In this regard it has been said that there is no principle of law which compels a merchant to overlook the morals of his customers. And it has been further aptly pointed out that the buyer may not in fact carry out his unlawful purpose, and if the contract should be deemed illegal nothing could have the effect of purging it of its illegality and the consequence of the doctrine would inevitably be that the seller, without having participated in any illegal act, or even illegal intent, but having simply known of such an intent subsequently abandoned, would be punished with a total loss of the property sold, and that for the benefit of the party alone guilty, if guilt could be predicated of such a transaction. And because of innumerable kinds of merchandise which may be applied to improper and unlawful uses, it would be wholly impracticable as well as unwise and unjust to require the seller of all sorts of merchantable goods to scrutinize the plans and purposes of the buyer with regard to the use of the commodity, and to sell only at the peril of forfeiting the price in every case where a jury might find that the seller had knowledge or reason to suppose the buyer intended to make an improper or unlawful use of the article." [23 R.C.L. Sec. 134, pp. 1317-19.] To the same effect 13 Corpus Juris, page 517. And in Michael v. Bacon, 49 Mo. 474, l.c. 476, the plaintiff sued to recover for labor and material furnished in papering a house. Defendant answered that the paper was furnished and work done with the knowledge on the part of plaintiff that a gambling business would be conducted in the house. There was evidence tending to show that plaintiff knew of such purpose. In ruling the question we said:

"If gamblers can procure work and labor to be performed, and houses to be built and furnished at a heavy expense, by mechanics and others, and then escape all responsibility under the plea that the laborer, etc., knew that such houses were intended to be used as gambling houses, then I must confess that the law, so understood, instead of being a shield, is a trap for the unwary. I am not aware of any principle of law which compels a merchant, laborer or mechanic to overlook the morals of his customers. He is not the keeper of their morals in any sense of the word. If he sells goods to a gambler, the sale is perfect on the delivery, and the gambler must pay for them, whatever his purpose may have been in making the purchase. If the merchant is not to be paid out of the illicit gains of a gambler, and is not connected by contract with the object the gambler has in view, his knowledge of the purpose does not vitiate the sale. I know there is conflict in the authorities in regard to the question under consideration, and some hair splitting distinctions have been made, sometimes sustaining and sometimes setting aside such sales; but in my judgment the weight of authority and reason is with the ruling as we here lay it down."

Defendants cite the following: Michael v. Bacon, 49 Mo. 474; Howell v. Stewart, 54 Mo. 400; Sprague v. Rooney, 82 Mo. 493; Sprague v. Rooney, 104 Mo. 349, 16 S.W. 505; St. Louis Fair Assn. v. Carmody, 151 Mo. 566, 52 S.W. 365; State ex rel. Connecticut Fire Ins. Co. v. Cox, 306 Mo. 537, 268 S.W. 87; State ex rel. v. Daues, 315 Mo. 22, 285 S.W. 479; Haggerty v. Ice Mfg. Co., 143 Mo. 238, 44 S.W. 1114; 2 Page on Contracts (2 Ed.) sec. 1108; Weinstein v. United States, 293 F. 388; Pattis v. United States. 17 F.2d 562; Anstess v. United States, 22 F.2d 594; Massei v. United States, 295 F. 683; Reynolds v. United States, 282 F. 256. We have examined those citations and many other cases and find nothing therein in conflict with this construction of the statute.

In this connection defendants contend that mere knowledge of the intended use by defendants of the hops, was evidence tending to show that plaintiffs were guilty of a conspiracy to violate the national prohibition act. We do not think so. "The mere knowledge, acquiescence, or approval of the act, without cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy." [12 C.J. 544; Lucadamo v. United States, 280 F. 653, l.c. 657; Marrash v. United States, 168 F. 225.] Defendants cite as sustaining this contention Jones v. United States, 11 F.2d 98; Pattis v. United States, 17 F.2d 562; Costal v. United States, 13 F.2d 843. In those cases the convictions were not sustained on mere knowledge. There was evidence tending to show cooperation.

IV. Defendants next challenge an instruction on the credibility of witnesses. Plaintiffs contend that no exception was saved by defendants at the time the court gave this instruction. On examination of the bill of exceptions we find recorded therein such an exception. However plaintiffs state that Bill of before the judge signed the bill he gave the parties Exceptions: a hearing on the question. They contend that at the Challenge. hearing the evidence showed that defendants did not at said time note an exception, and that the judge was in error in signing the bill. A record of this evidence and the finding of the judge on the question was signed by the judge and attached to the bill of exceptions. Plaintiffs seek to have this court review the evidence and determine the question. We are without authority to do so. By statute the authority to settle a bill of exceptions is lodged with the trial judge or by-standers. [Secs. 1008, 1009, 1010, 1011, R.S. 1929.] The evidence at that hearing is no part of the proceedings of the trial and is not a part of the bill of exceptions. [Tyon v. Wabash Ry. Co., 207 Mo. App. 322, l.c. 331, 232 S.W. 786.]

Plaintiffs also contend that defendants did not challenge this instruction in the motion for a new trial. We find in the motion specifications as follows:

"Because the court erred in giving the Instructions 1, 2, 3, 4, 5 and 6 and all other instructions at the request of plaintiff, because said instructions were illegal and improper and were given over the objections of the defendants then made and overruled and excepted to.

"Because the court erred in giving instructions of its own motion over the objections and exceptions of the defendants."

Under the rulings of this court these specifications are sufficient to challenge the action of the trial court in giving the instruction.

We now consider the instruction. Defendants contend that the evidence did not justify an instruction on the credibility of witnesses. We think the trial court did not abuse its discretion. The conflict in the evidence authorized the instruction. [Howser v. C.G.W. Ry. Co., 5 S.W.2d 59, l.c. 65; Dawson v. Flintom, 190 S.W. 972, l.c. 974.]

Defendants next contend that the instruction was erroneous for the reason it did not require the jury to find that a witness has "willfully" or "intentionally" sworn falsely as to a material matter before the jury could reject the whole or any part of such witness's testimony. Under the instruction if the jury believed a witness has sworn falsely as to a material matter, the testimony of such witness could be rejected. "In failing to require the element of willful or intentional false swearing, the long settled law in this State was violated." [State v. Elkins, 63 Mo. 159; Jackson v. Powell, 110 Mo. App. 249, 84 S.W. 1132; Poague v. Mallory, 208 Mo. App. 395, 235 S.W. 491.]

For the error in this instruction, the judgment should be reversed and the cause remanded. It is so ordered. All concur.