Obrázky stránek

vendee inspected the plantation before he purchased it, and discovered the presence of coco grass upon it, and thereupon abandoned further inspection of the land with a view of not purchasing the plantation. He was, however, induced to make the purchase, by the representations of the vendor that coco grass was only on 40 or 50 acres of the plantation, which comprised over 3,000 acres.

The same result was reached under a very similar state of facts in Oswald v. McGehee (1854) 28 Miss. 340, wherein a contract for the purchase of a plantation was rescinded at the instance of the vendee, for false representations of the vendor as to the amount of coco grass. In that case, however, the court found that the vendor knew of the falsity of his representation, and it was also held that it could not be said that the testimony showed that prevalence of the coco grass was so obvious to the senses as to destroy the legal effect of the representations made by the vendor in regard to it, and that hence the purchaser would not be denied relief on the ground of gross neglect, when he acted on the assurance of the vendor. The court said that the rule in such a case is "that, although the purchaser may, by close inspection, detect a vice in the thing sold, yet if the vendor makes representations upon which he relies and which prevent him from making a proper examination, and which prove to be unfounded, it is good ground to avoid the contract. In the absence of all representations of the vendor, the purchaser is held to strict diligence in examining and judging for himself; but where representations are made as to doubtful matters, material in the transaction, the purchaser may protect himself by relying on the good faith of the vendor; and, in breach of that, he will not be bound by the contract."

Likewise, in Woodward v. Western Canada Colonization Co. (1916) 134 Minn. 8, L.R.A.1917C, 270, 158 N. W. 706, a sale of land was rescinded for false representations by the vendor that the soil was in good condition for farming, the representations being

false, due to the fact that the soil was infested with Canada thistles, wild oats, and mustard. In that case, the vendee claimed that he relied on the representations, and was induced thereby to make the purchase. He was a resident of another state, a practical farmer of many years' experience, and was familiar with farm lands and farming methods. He was taken to the farm with others in an automobile, and the opportunity for examination was limited. He did not seek a further examination. A considerable portion of the farm had grown up to weeds. The vegetation was dead, and the character of the weeds was not easily ascertainable, though the fact that weeds were present could not escape observation. The court said that the fact that plaintiff saw the land before he purchased was not conclusive proof that he did not rely upon the representations as to its character or condition, though important for consideration in determining whether he did.

While not strictly within the scope of this note, attention is called to Clary v. Myers (1897) - Tex. Civ. App., 40 S. W. 633, involving a suit. by the vendor against the vendee to recover on two notes, given for a portion of the purchase price of land. The vendee defended on the ground that the vendor falsely represented that the land was free from Johnson grass, and sought the cancelation of the two notes on the ground that the amount he had already paid was all the land was worth under the circumstances, and the court sustained the judgment, canceling one of the notes, and denying relief on the other on the ground that it was not then due.

A somewhat similar case is Vandewalker v. Osmer (1873) 65 Barb. (N. Y.) 556, in which, however, the vendee was denied the right to recover damages in a deceit action for false and fraudulent representations by the vendor that there were no daisies on the farm he was purchasing. The plaintiff was defeated on the ground that he went to the farm on two or three different occasions before purchasing it, and might easily have as

certained the presence of daisies on the farm. The court said that "while it is true that the purchaser may, by relying on the representations of the vendor, be misled, and omit to make that careful examination of the property that a prudent man would and should make, yet a jury should require the clearest proof that the purchaser was induced by the representation to omit to examine the property. It will not do to permit a vendee having the property before him, and defects in it plainly discoverable, to close his eyes and ears and omit to use his senses, and pretend that he relied on the representations, and was thereby misled." To the same effect is Long v. Warren (1877) 68 N. Y. 426, wherein the vendee was denied the right to recover damages for false and fraudulent representations as to nonexistence, on the farm he was buying, of a noxious weed or grass known as quack grass. The vendor stated that there was a small quantity of quack grass at a certain place. This representation was found to be false, but the vendee was denied the right to recover, on the ground that it did not appear that the vendor used any artifice, either of word or act, to dissuade, or turn away, or hinder the vendee from making an inspection of the farm for himself, and it was evident that he had the opportunity in full degree to make a personal inspection. The court said: “One is forced by the testimony to the conclusion that, had the plaintiff, when he was on the farm before the purchase, taken ordinary pains to look out for this grass, he would have perceived it in some

other lots than that to which it was confined in the defendant's representation. Now the rule of law in such case was early thus laid down: Where the matter is not peculiarly within the knowledge of the defendant, and the plaintiff has the means of obtaining correct information, apart from the statements made to him, he may not recover upon the false declaration."

In Hetland v. Bilstad (1908) 140 Iowa, 411, 118 N. W. 422, it was held in an action for fraud, based upon false representations that farming land was free from weeds, and so lay that water drained from it, and none onto it from surrounding lands, that the question whether or not these representations were matters of fact or of opinion was for the jury. The court said: "The objection is that these were mere matters of opinion, and not representations of facts. In nearly all land there is enough seed to require constant exertion for weed extermination, and, of necessity, statements of the kind above mentioned relate largely to the quality of the land. Nevertheless such statements

[ocr errors]

may be representations of fact, if so intended." The foregoing case is cited with approval in Franke v. Kelsheimer (1917) 180 Iowa, 251, 163 N. W. 239, wherein in an action by the lessee of farming land against the lessor to recover damages for false representations that the land was free from noxious weeds, the court said that the representation was not trade talk, mere puffing, or expressions of opinion, but, if false, it was an actionable representation. A. G. S.



I. BRANDY, Impleaded, etc., Respt.

Wisconsin Supreme Court - March 13, 1917.

Intoxicating liquors

(165 Wis. 196, 161 N. W. 766.)

liability for goods sold to one conducting business. 1. One who takes out a license to sell intoxicating liquors to enable another to conduct a liquor business is answerable for the price of liquor

sold such person, although he has no connection with the business, and the liquors are sold on the credit of the one conducting the business, where the statute makes it a misdemeanor to traffic in intoxicating liquors without license, which is assignable only in case of death of the licensee. [See note on this question beginning on page 1516.]

assignability of license.

2. A license to sell intoxicating liquors is a mere privilege to be enjoyed while the conditions and restrictions are complied with, and implies special confidence and trust in the licensee, and from the very nature of things such license is not assignable at common law.

- liability for act of agent.

3. One holding a license to sell intoxicating liquors is responsible for whatever is done in the place where

the liquors ars sold by his agent in violation of law, even though it is against his express direction. Estoppel

owner of license denial of liability for supplies.

4. One in whose name stands the license under which a saloon business is conducted is estopped to assert that he is not the owner of the business conducted under the license, for the purpose of avoiding liability for supplies purchased for the business.

APPEAL by plaintiff from a judgment of the Circuit Court for Kenosha County dismissing an action brought to recover the balance alleged to be due for goods sold and delivered by plaintiff to defendants. Reversed. Statement by Eschweiler, J.:

The plaintiff corporation is a wholesale liquor dealer. The defendant, I. Brandy, in the year 1914, on his personal application, obtained from the common council of the city of Kenosha a license to operate a saloon in that city. He was at the time, and for several years had been, engaged in a men's clothing and furnishing business about six or seven blocks away from the saloon. He took the license for the purpose of helping the defendant Schwartz, a poor man who wanted to run the saloon, and with the understanding that Brandy himself would not conduct it.

Plaintiff's salesman found defendant Schwartz in charge of the saloon and accepted Schwartz's order for goods. Under Schwartz's directions they were consigned to I. Brandy and delivered in Kenosha to one Grube, a drayman who was authorized to receive goods for Brandy, by general instructions not referring specifically to these liquors. The goods were used at the saloon in question and part payments made by Schwartz. Statements were sent by plaintiff to Brandy, but no response made by

him, and attempts to collect of the defendant Schwartz were also made and payments made by him. Plaintiff dismissed the action as to defendant Schwartz.

Findings were made by the court to the effect that Schwartz was the owner of the saloon and the purchaser of the goods, and not the agent of Brandy, who did not authorize Schwartz to purchase goods upon Brandy's credit; that Brandy paid none of the expenses and received none of the profits of the saloon business; that no inquiry was made by plaintiff of Brandy as to such sales or as to the authority of Schwartz; that plaintiff's agent knew at the time the orders for goods were taken that Brandy was in the clothing business; that such agent called upon the defendant Schwartz for payment, but did not demand the same of Brandy. Upon such findings the court determined that plaintiff was not entitled to judgment as against Brandy, and from the judgment dismissing the action the plaintiff appeals.

Mr. George W. Taylor, for appellant:

A principal is responsible for the acts of his agent when he has either

(165 Wis. 196, 161 N. W. 766.)

given his agent authority to do the act, or justified the party dealing with the agent in believing that the latter had such authority.

Kasson v. Noltner, 43 Wis. 646; Bouck v. Enos, 61 Wis. 660, 21 N. W. 825; Bentley v. Doggett, 51 Wis. 224, 37 Am. Rep. 827, 8 N. W. 155; Andrews v. Robertson, 111 Wis. 334, 54 L.R.A. 673, 87 Am. St. Rep. 870, 87 N. W. 190; Pluto Powder Co. v. Cuba City State Bank, 153 Wis. 324, 141 N. W. 220; Ruane v. Murray, 26 Pa. Super. Ct.


Messrs. Umbreit, Mahon, & Jenner, also for appellant:

The defendant is estopped from denying Schwartz's agency.

State v. Bayne, 100 Wis. 35, 75 N. W. 403; McDermott v. Jackson, 97 Wis. 64, 72 N. W. 375; Dodge v. McDonnell, 14 Wis. 553; Aldrich v. Wilmarth, 3 S. D. 523, 54 N. W. 811; Garlick v. Morley, 147 Wis. 397, 132 N. W. 601.

Knowledge on the part of defendant's agent that the goods were billed to, and receipted by, defendant Brandy, makes defendant chargeable with knowledge thereof, and his silence and failure to act on such knowledge amount to ratification of the transaction, and estop him from denying liability.

Lakin v. Sierra Buttes Gold Min. Co. 25 Fed. 337; Wiley v. Knight, 27 Ala. 336; Saulsbury v. Wimberly, 60 Ga. 78; Meier V. Blume, 80 Mo. 179; Ingalls v. Morgan, 10 N. Y. 178; Smyth v. Oliver, 31 Ala. 39; Watson v. Wells, 5 Conn. 468; Prater v. Cox, 64 Ga. 706; Sooy v. State, 41 N. J. L. 394; Gibson v. Snow Hardware Co. 94 Ala. 346, 10 So. 304.

Mr. Robert V. Baker for respondent. Eschweiler, J., delivered the opin-. ion of the court:

By § 1550, Stat., it is made a misdemeanor, punishable by fine or imprisonment in the county jail, for any person to vend, sell, deal, or traffic in spirituous or intoxicating liquors without first having obtained a license or permit therefor, as required by law. To obtain such permit under the law of this state, chap. 66, the person must make application in writing, stating the kind of license applied for and designating the premises where such liquor

shall be sold. The only statutory provision for assigning or transferring such license is in case of the death, during the license year, of such licensee. It is further provided under the same chapter that notice of such application for license shall be published before the granting thereof, and a bond must be given before the delivery of the license, such bond to provide that the applicant will keep and maintain an orderly and well-regulated house, will permit no gambling, and will not sell or give away liquor to certain classes of persons, such as minors or intoxicated persons.

It has already been held by this court that such a license is a mere privilege, to be enjoyed while the conditions and restrictions are complied with, and implies special confi- liquors dence and trust in assignability of the licensee, and



from the very nature of things such license is not assignable at common law. State v. Bayne, 100 Wis. 35, 75 N. W. 403. Although the license is for a fixed term, it comes to an end with the life of the licensee. State ex rel. Rich v. Steiner, 160 Wis. 175, 177, 151 N. W. 256. Even were the license assigned to Schwartz by Brandy, it would have been no protection for sales by Schwartz, except as agent for Brandy. State v. Bayne, supra.

It has also been held that the person having obtained and holding a license is respon

act of agent.

sible for whatever -liability for is done in that place of business by his agents, in violation of law, even though it be against the express direction of the person having such license. State ex rel. Conlin v. Wausau, 137 Wis. 311, 118 N. W. 810; Olson v. State, 143 Wis. 413, 127 N. W. 975; Reismier v. State, 148 Wis. 593, 596, 135 N. W. 153.

Under this view of the situation that the law places a person in by the obtaining of such permit to con

[blocks in formation]

one who undertook to play the part of the good Samar

owner of license

denial of liasupplies.

bility for

itan should be re- Estoppelwarded with such a penalty as the judgment in this case must be. We feel, however, it is the better policy that a person who has assumed to the city and the public at large the position that the defendant Brandy did, by his application for and obtaining the license, should be held to all the obligations that follow such an assumption.

Judgment of the Circuit Court is reversed, and the cause remanded with directions to enter judgment for the plaintiff against the defendant Brandy in accordance with the prayer of his complaint.


Civil liability of one who takes out license for sale of intoxicating liquor for benefit of another.

I. Generally, 1516.

II. Liability of licensee for purchase price of liquor, 1517.

III. Liability of licensee on statutory bond, 1519.

I. Generally.

The law prohibits the holding of a liquor license by one person in the interest of others. Equitable Trust Co. v. Murphy (1910) 20 Pa. Dist. R. 351. Hence, a contract whereby a person takes a liquor license in his own name, to be used for the benefit of another in conducting the liquor business, is illegal and void, as being in violation of law, and as between the parties, no civil liability can be predicated on its provisions. Koppitz-Melchers Brewing Co. v. Behm (1902) 130 Mich. 649, 90 N. W. 676; Ruemmeli v. Cravens (1903) 13 Okla. 342, 649, 74 Pac. 908, 76 Pac. 188; Equitable Trust Co. v. Murphy (Pa.) supra.

In Equitable Trust Co. v. Murphy (Pa.) supra, the court held that if an agreement was made, as alleged, that the defendant, who was the widow and administratrix of the estate of a deceased retail liquor dealer, should obtain a transfer of his license to

her individually, to be held by her for the benefit of herself and her children, the agreement was in violation of the law and contrary to the policy of the state, and therefore would not be enforced by a court of equity.

In Ruemmeli v. Cravens (1903) 13 Okla. 342, 649, 74 Pac. 908, 76 Pac. 188, it appeared that the plaintiff, who was a nonresident of the territory and therefore could not procure a license to sell liquors within it, entered into a contract with the defendant, whereby the latter, as the agent of the plaintiff for the wholesaling of intoxicating liquors, was to secure a license in his own name. The defendant procured the license and conducted the business in his own name, without disclosing his agency. In an action by the plaintiff to recover money alleged to have been appropriated by the defendant while acting as agent, it was held that the contract was illegal and void, and prohibited by the state, for the reason that the plaintiff had not procured a license. The court said: "The very nature of the business of selling intoxicating liquors necessitates stringent provisions to keep it within

« PředchozíPokračovat »