Opinion
7 Div. 620.
March 14, 1940.
Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.
McCord Miller, of Gadsden, for appellant.
Defendant not having a license to sell malt beverages, the sale made by plaintiff was unlawful, and suit cannot be maintained by plaintiff. Gen.Acts 1936-7, p. 40.
Otto Zerwick and Geo. Murphy, both of Gadsden, for appellee.
The Act makes it unlawful for licensee knowingly to sell certain beverages to one engaged in business of illegally selling liquor. It is not shown that plaintiff knowingly sold to one illegally selling liquor. Moreover, the Act does not declare the sale to be void. Gen.Acts 1936-7, p. 40, § 24 (8).
The suit was on an open account for the purchase price of beer.
Defendant's plea of the general issue was the denial of the purchase thereof and liability therefor.
The court gave the general affirmative charge for plaintiff.
When plaintiff had rested, defendant introduced testimony tending to show that neither he nor his partner had a license to sell the beverage under the Alabama Beverage Control Act, General Acts of Alabama, Extra Session, 1936-37, p. 64, § 24, subsection (8), and urged that the sale was contrary to the law and to the public policy of the state, and hence, a recovery was forbidden.
The statute is:
"Section 24. Unlawful Acts: — It shall be unlawful: * * *
"(8) For any licensee to knowingly sell an vinous and/or malt or brewed beverages to any person engaged in the business of illegally selling liquor, vinous and/or malt or brewed beverages."
The bill of exceptions fails to show that the plaintiff knowingly sold the beer in question to the defendant engaged in the business of illegally "selling liquor, vinous and/or malt or brewed beverages."
In the absence of such proof, the giving of the general affirmative charge, requested by the plaintiff, was without error.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.