#### Clohessy *versus*Roedelheim, Bing & Co.

-A-0*' °f March 30th 1860 (Pamph. L. 346), -which provides that *n actioDS ^01’ the sa^e any spirituous, vinous or malt liquors the fac|¡ that such liquors or admixtures thereof were impure, vitiated or adulterated shall constitute a good and sufficient defence, applies only in those cases where the quality or value of such liquors has been impaired by the impurity, vitiation or adulteration.

3. Where in an action to recover the price of liquors sold the defendant sets up as a defence the fact that the liquors have been sold to him in a county where the local option law was at the time in force, it is not enough for him to show an agreement or contract to sell in that county. He must also prove the actual consummation of the sale by the delivery of the goods there.

3. A., living in a county where the local option law was in force, visited the store of B. *&*Co. in another county, where such law was not in force, and there selected various liquors which he desired to buy, and which were set apart for him. At his request these liquors were subsequently shipped to his residence by B. *&*Co, marked with the initials of the firm and labelled “ Glassware.” The freight was paid by A., who received the goods by virtue of certain written orders sent to him at his request by B. & Co. In an action by B. & Co. against A. to recover the price of said liquors, *Held,*that the sale and delivery had taken place in the county wherein B. *&*Co. did business, and not in that wherein A. resided; that B. & Co. had an undoubted right subsequently to mark and ship the goods in whatever manner A. might direct, that there was no evidence that B. & Co. had knowingly aided A. to evade or violate the local option law in force in the county in which A. lived, and that therefore the plaintiffs were entitled to judgment.

October 31st 1881.

Before Sharswood, O. J., Mercur, Gordon, - Trunkey, Sterrett and Green, JJ. Paxson, J., absent.

Error to the Court of Common Pleas No. 1, of *Allegheny county :*Of October and November Term 1881, No. 76.

*57Assumpsit, by S. Boedelheim, S. Bing and II. Schloss, partners trading as Boedelheim. Bing & Co., against Michael Clohessy to recover the sum of $4-78.95, being the price of certain liquors furnished by plaintiffs to the defendant.

On the trial, before Coi.lier, A. J., the following facts appeared : The defendant Clohessy was in 1874 the proprietor of a small hotel at Irwin, Westmoreland county, in which county the local option law was then in force. During the spring and summer of that year, defendant at various times purchased of plaintiffs, who carried on business in the city of Pittsburgh, Allegheny county, the various liquors to recover the price of which the present suit was brought.

As to the place where, and the manner in which, those liquors were purchased the evidence of the plaintiffs and defendant was wholly contradictory. Plaintiffs testified that the defendant came to their store at Pittsburgh, examined and chose the liquors which he wanted, and that they were then and there set apart for him, being subsequently forwarded, at his request, to the railroad station at Irwin, Westmoreland county. Defendant on the contrary testified that one of the plaintiffs had called on him at his hotel in Irwin and that lie had then and there ordered the liquors, plaintiffs agreeing and undertaking to forward them from their store in Pittsburgh to Irwin.

The fact was undisputed that the goods were at defendant’s request forwarded to him marked “ B. *&*B.,” and labelled “ Glassware.” Defendant paid the freight upon them, receiving them at Irwin by virtue of sundry written orders sent to him at his request by plaintiffs in tlie following form :

*“*Freight Agent, Irwin Station, Pa.

“ *Dear Sir:*— Please deliver unto bearer 1 bbl. and 1 box glassware, marked It. & B., at your station, and oblige

“ Yours,

“ Boedelheim, Bing *&*Co.”

Defendant testified that he liad adopted this plan of having the goods sent to him, so that he might escape appearing to be the consignee thereof.

Defendant also gave evidence tending to show that the liquors in question, or at least some of them, were not pure, but were adulterated.

Defendant requested the court to charge, inter alia,

2. That any impurity, vitiation or adulteration, to the least extent, would fall within the meaning of the law which prohibits a recovery for such liquors; therefore, if the jury find from the evidence that there *was*the least impurity, vitiation or adulteration, their verdict should he for the defendant.

*58Ans. “If tbe jury believe, that there was any impurity, vitiation or adulteration, which impaired the quality or value of any of the liquors in suit to the least extent, the • plaintiffs cannot recover for the liquors so impaired.” Exception. (First assignment of error.)

3. That the term impure means the introduction of any substance foreign to and not essential in the manufacture of pure liquors. Therefore, if the jury find that the liquors sued for contained any impurity, the plaintiffs cannot recover.

Ans. “Refused.” Exception. (Second assignment of error.)

4. That if the jury find that the contract of sale and purchase was made in the county of Westmoreland, while the-local option law, which prohibited the sale of intoxicating liquors in that county, was in force, and in violation thereof, the plaintiffs cannot recover.

Ans. “ Refused.” Exception. (Third assignment of error.)

*7.*That if the jury believe the testimony of the plaintiffs themselves, that the liquors were shipped in their own names to Larimer or any other point in the county of Westmoreland, and that the goods were then delivered to the defendant in violation of the local option then in force, the plaintiffs cannot recover.

Ans. “ Refused. The plaintiffs expressly deny that they delivered the goods to the defendant in Westmoreland county.” Exception. (Fourth assignment of error.)

8. That if the jury find from the facts as stated by the plaintiffs, that the liquors were shipped to any point within the county of Westmoreland, in the plaintiffs’ names, and that the plaintiffs authorized the delivery to defendant in the county of Westmoreland, at the request of defendant, to knowingly aid him to evade the prohibitory law then in force in that county, then and in such case the plaintiffs cannot recover.

Ans. “ Refused.” Exception. (Fifth assignment of error.)

9. That if the jury find from the evidence that the plaintiffs, in the salo and delivery of the liquors sued for, knowingly aided and abetted the defendant in any way to evade or violate the liquor law then in force in the county of Westmoreland, then, and in such case, the plaintiffs cannot recover.

Ans. “ Refused.” Exception. (Sixth assignment of error.)

The Court charged, inter alia, as follows :

The defendant alleges that the goods he bought were liquors; that at the time he purchased them the local option law, as it is commonly called, was in force in Westmoreland county, and that because of that law no one could sell liquors without a license, and a license could not be had. He also alleges that he contracted for these goods in Westmoreland county, and that *59the plaintiffs agreed to deliver them to him there, and he contends, if you believe that, it makes a defence to the whole of plaintiffs’ claim.

It is my duty to say to you that although this defendant got the plaintiffs’ liquors, and has not accounted for them, if they contracted to sell him the liquors, and agreed to deliver them to him in IV estmoreland county, they cannot recover. . . .

But, on the other hand, if the goods were selected in Pittsburgh, or, on the'question of delivery, if Clohessy himself asked that they be delivered in this way, because he did not want them to appear in his name, and requested that they be shipped in the plaintiffs’ name, and he be given a card by which he could got them from the railroad company, and that card was given or mailed to him as each article was shipped, ho to pay the freight, then it was a delivery in Pittsburgh, and not in Westmoreland county, and the act would not apply.....

The defendant, as he has a right to do, interposes, as a defence, the Act of 1860. He claims he ought not to pay for these liquors, because there is an act which says, that whenever impure, vitiated or adulterated liquors are sold, lie need not pay for them. That is correct. The question arises whether these liquors, or any of them, were impaired, impure, vitiated or adulterated. If they were to the least extent, so as to impair their quality or value, that is enough, under the law .... you determine whether any of the liquors were impure, vitiated or adulterated in the least degree so as to impair their quality or value. If they were, the plaintiffs cannot recover for the liquors in that condition.

Verdict and judgment for the plaintiffs in the sum of $272, whereupon defendant took this writ of error, assigning for error, *inter*alia, the answers of the court to the defendant’s points above cited.

*Weir*(with whom were *Gibson*and *MoKenna),*for the plaintiff in error.

The Act of March 29th 1860 (P. L. 346), provides that “in all actions for the sale of spirituous, vinous or malt liquors, or any admixture thereof, it shall be competent for the defendant in every such case to prove that such liquors or admixtures thereof were impure, vitiated or adulterated, and the proof thereof being made it shall amount to a good and legal defence to the whole of plaintiffs’ demand.” Under this act the sole question for the jury is whether the liquors are impure, vitiated or adulterated. It can make no difference whether the quality or value of the liquor is or is not impaired. The evidence clearly shows that plaintiffs combined with defendant to evade and violate the local option law. This precludes them from *60recovering: Bank of U. S. «. Owens, 2 Peters 538; Coppell «. Hall, 7 Wall 558; Bank «. Lanier, 11 Wall. 369.

“ Tbe principle of public policy is that no court will lend its aid to a man who grounds his action upon an immoral or illegal act”: Mitchell «. Smith, 1 Binney 110; Siedenbender «. Charles’ administrator, 4 S. & R. 151; Biddis «. James, 6 Binney 329 ; Maybin «. Coulon, 4 Dallas 298; Duncanson «. McLure, 4 Ibid. 308; Badgley «. Beale, 3 Watts 263; Kepner «. Keefer, 6 Ibid. 231; Wagonseller «. Snyder, 7'Ibid. 343 ; Clippinger v. Hepbaugh, 5 W..& S. 315; Filson «. Himes, 5 Barr 452; Columbia Bank and Bridge Co. «. Haldeman, 7 W. & S. 233; App «. Coryell, 3 P. & W. 494; Edgell «. McLaughlin, 6 Wh. 176; Brua’s Appeal, 5 P. F. Smith 295; Fowler «. Scully, 22 Ibid 456; Stephens «. Monongahela National Bank, 7 Norris 157.

*Josiah*Cohen, for defendants in error. —

The true object of the Act of Assembly, invoked by plaintiff in error, was not to prevent *admixture of*liquors, for, by the terms of the act, “ admixtures ” thereof were recognized, but that such admixtures should not be impure, vitiated or adulterated.

The spirit of the whole charge of the court is in strict accordance with the meaning of the Act of Assembly cited. There are no judicial interpretations of it of record, but surely the act never designed more than to prevent such admixtures which, as the learned judge says, “ *impair the quality or vaT/ue*” of the liquor “ in the least degree.” In any event the qualifying words, “ so as to impair their value in the least degree,” as used by the court below in connection with the terms “impure, vitiated or adulterated,” were intended to work out simple justice by instructing the jury that every admixture did pot necessarily render the mixture impure, vitiated or adulterated.

There was no evidence to show that plaintiffs had conspired with defendant to evade or violate the local option law. The place of delivery of the goods was the place of sale: Shriver *&*Co. «. Pittsburgh, 16 P. F. S. 446 ; Garbracht«. Commonwealth, 11 Pitts. Leg. Journ. (N. S.) 220 ; Finch «. Mansfield, 97'Mass. 89. Here the question of the place of delivery and of sale was fairly submitted to the jury, and found not to be within the limits of Westmoreland county. There was therefore nothing illegal in the contract.

Mr. Justice Sterrett

delivered the opinion of the court, November 14th 1881.

One of the several defences, made in the court below, was grounded on the Act of 29th March 1860, which, inter alia, provides that “ in all actions for the sale of any spirituous, vin*61oits or malt liqnors, or any admixtures thereof, it shall be competent for the defendant, in every such ease, to prove that said liquors or admixtures thereof were impure, vitiated or adulterated ; and proof thereof being made, shall amount to a good and legal defence to the whole of the plaintiff’s demand : ” Purdon, 919 pi. 61.

Testimony was introduced by the defendant below, tending to prove that at least some of the liqnors purchased from the plaintiffs wTere of the character described in the act; and, in the two points, covered by the first and second assignments of error respectively, the court was requested to charge, 1st. “ That any impurity, vitiation or adulteration, to the least extent, would fall within the meaning of the law which prohibits a recovery for such liquors; therefore, if the jury find from the evidence that there was the least impurity, vitiation or adulteration, their verdict should be for the defendant.” 2d. *“*That the term impure, means the introduction of any substance, foreign to and not essential in the manufacture of pure liquors. Therefore, if the jury find that the liquors sued for contained any impurity, the plaintiffs cannot recover.” The latter proposition was refused; and, in answer to the first, the learned judge instructed the jury that if they believed “ there was any impurity, vitiation or adulteration, which impaired the quality or value of any of the liquors in suit, to the least extent, the plaintiffs cannot recover for the liquors so impaired.” In view of the mischief intended to be remedied by the act, we think the construction given to it, in the foregoing answer, in connection with the general charge, is entirely proper. The act was not intended to prevent every admixture of liqnors, for by its very terms “ admixtures thereof ” are recognized. The penalty of the act is aimed at such impurity, vitiation or adulteration of liquors or admixtures thereof as impairs either their quality or value. This, of course, forbids the introduction of all poisonous or noxious ingredients, because these necessarily impair the quality, if not also the value of the liquor. The amount found by the jury, as compared with the plaintiffs’ demand, indicates that, under this branch of the defence, part of their claim was excluded by the jury.

Another ground of defence was, that the liquors were sold and delivered by plaintiffs to defendant in Westmoreland county, in violation of the local option law then in force in that county. On that subject the testimony was somewhat conflicting, and it was therefore a question of fact for the jury, whether the sale was consummated by delivery in Allegheny, or in Westmoreland county. That question was fairly submitted with proper instructions as to what constituted a sale ; and the jury were told that if they believed the liquors were sold in West*62moreland county, tlieir verdict should be for the defendant. In addition to the instructions thus given in the general charge, two of the plaintiffs’ propositions, complained of in the last two assignments, were affirmed. In each of these an important phase of the question, as suggested by the testimony, was clearly and correctly presented, and there was no error in affirming them. The verdict, rendered under the full and explicit instructions thus given in the general charge, and in answer to the plaintiffs’ eighth and ninth points above referred to, establishes the fact that the sale was made in Allegheny county, where the local option law was not in force.

The third assignment is not sustained. It was not enough for defendant to show that an agreement or contract to sell was made in Westmoreland county; Before he could claim that plaintiffs had forfeited their right to recover the price of their goods, in consequence of having sold them in W estmoreland county, contrary to law, it was incumbent on him to prove a sale consummated by delivery in that county — such a sale as would render them amenable to indictment there. As already observed, the. instructions on this subject were clear and adequate. The point, as presented, was rightly refused: Garbracht *v.*Commonwealth, 11 P. L. J. (N. S.) 220.

Eor the reason giveii by the learned judge, there was no error in refusing to affirm the point specified in the fourth assignment. It improperly assumed, as a conceded fact, that the liquors were delivered by the plaintiffs below in Westmoreland county. This they expressly denied, and it thus became one of the main questions of fact for the jury.

The fifth and sixth assignments are not sustained. The propositions recited therein, and which the court refused to affirm, are based on the testimony as to an understanding- between the parties, in pursuance of which the goods, purchased by defendant below, were marked “R. *&*B.,” and shipped to Westmoreland county, so that his name would not appear as consignee, &c. If the sale was actually made in Pittsburgh, neither the manner in which the goods were consigned to the purchaser, nor the purpose for which they were thus consigned, could possibly change the place of sale and delivery. Assuming it to be true that they were marked and shipped in the manner and for the purpose testified to by the defendant below, the plaintiffs, in so doing, violated no law. If they sold and delivered the liquors- to him at Pittsburgh, as the jury found, they had an undoubted right to mark and ship them to him in any manner he might direct. To hold that, by so doing, they knowingly aided him to evade or violate the liquor law, then in force in Westmoreland county, would be wholly unwarranted. Aside from the defence based on the act of 1860, the only question *63that could legitimately arise on the evidence in the case, was whether the sale was consummated by delivery in Allegheny, or in W estmoreland county. That question, as we have seen, was fairly submitted to the Jury, and found in favor of the plaintiffs below.

Judgment affirmed.

Chief Justice Shabswood dissented.