#### The State of Ohio *v.*Mullin.

*Sale of intoxicating liquors*— Goods *delivered to carrier*— Sale *completed thereby, when*— Place *of sale is where*— Title *passes, when*— Agency.

When, pursuant to specific instructions from the purchaser, goods sold are forwarded to him by express, marked C. *O'.*D., the express company is the agent of the purchaser to receive said goods from the seller, and the agent of the seller to receive their price from the purchaser, and upon delivery to the carrier, title to the goods passes to the purchaser, although he is not entitled to their actual possession until he pays or tenders the purchase price. The sale is complete when the goods are delivered to the carrier, and the place of sale is the place of delivery to it.

(No. 11017

Decided June 26, 1908.)

Error to the Circuit Court of Harrison county.

At the October term, 1906, of the Harrison county court of common pleas the ' defendant in error, William Mullin, was indicted for selling intoxicating liquor in violation of Section 4364-25, Revised Statutes, commonly known as “The Township Local Option Law.” The accused entered a plea of not guilty, and waived in writing his right to a trial by jury. Thereupon by consent of the prosecuting attorney on behalf of the state, and by the consent of the defendant and his counsel, the cause was submitted to the court upon the following agreed statement of facts which was all the evidence offered in the case:

“It is agreed upon the part of the state, and upon the part of the defendant and his counsel *359that the following statement of fact sets forth and embodies all that the testimony in said case shows, to-wit:

“That more than thirty days prior to September 15, A. D. 1906, the date of the sale of intoxicating liquors, as alleged in the said indictment, the said township of Green, in Harrison county, Ohio, had availed itself of the provisions of Section 4364-24, Section 1, and of Section 4364-25, Section 2, of the Revised Statutes of Ohio, as to local option in townships, and had under the provisions of said sections held an election in compliance with the directions of said statutes, and that at such election, a majority of the qualified electors voting at said election in said township, outside of the municipal corporations therein, voted ‘against the sale/ and that at the said date of the sale of intoxicating liquors, to-wit, September 15, A. D. 1906, and for several years prior thereto, the sale of intoxicating liquors as a beverage, to any person, within said township, and outside of the limits of the municipal corporations therein, other than sales of cider, or sales of wine manufactured from the pure juice of the grape, cultivated in the State of Ohio, and other than sales by a legally registered druggist of intoxicating liquor for exclusively known medicinal, art, scientific, mechanical or sacramental purposes, was and has ever since been prohibited by law.

“That the records of the township clerk of said township of Green, in Harrison county, Ohio, shows that such election under said township local option .statutes, was held more than thirty days prior to the date of said sale, and the entry and *360record of the result of said election, as shown by the records of said township clerk, which entry and record were made more than thirty days prior to the date of said sale of intoxicating liquors, and which entry and record were made in accordance with Section 4364-29 of the Revised Statutes of Ohio, show that the majority vote, at such election, was ‘against the sale’ of intoxicating liquors. And that, at the date of said sale of intoxicating liquors, the sale of intoxicating liquors as a beverage, was then and there prohibited and unlawful, except sales of cider, or sales of wine manufactured from the pure juice of the grape, cultivated in the State of Ohio, and except sales of intoxicating liquor, by a legally registered druggist for exclusively known medicinal, art, scientific, mechanical, or sacramental purposes.

“That said sale of intoxicating liquors by the defendant was not a’ sale of cider, was not a sale of wine manufactured from the pure juice of the grape, cultivated in the State of Ohio, and was not a sale by a legally registered druggist of intoxicating liquor for exclusively known medicinal, art, scientific, mechanical, or sacramental purposes.

“That the defendant, William Mullin, is a resident of the village of Amsterdam, Jefferson county, Ohio, where he is engaged in the business of dealing in intoxicating liquors, and that on September 15, A. D. 1906, and for a long time prior thereto, the defendant was located in said village, and there legally engaged in said business.

“That on or about the fifteenth day of September, A. D. 1906, one Howard Dunn, being then and there within the limits of the said township of *361Green, Harrison county, Ohio, and without the limits of the municipal corporations of said township, by letter mailed to the defendant, William Mullin, and received by the said defendant, at said village of Amsterdam, requested the defendant to ship, by express, one case of intoxicating liquor, to-wit, ‘beer/ to the said Howard Dunn, and, in said letter ordered the said intoxicating liquor to be addressed and shipped to the said Howard Dunn, at Burton station, said station being on the line ■ of the Lake Erie, Alliance and Wheeling Railroad, in said Green township, Harrison county, Ohio, and without the limits of the .municipal corporations of said township, and the said Howard Dunn requested that the said intoxicating liquor be sent to him as aforesaid, stating in said request, that the price of said intoxicating liquor, and express charges on same, and the charges for forwarding the consideration or price of said beer from said Burton station, per the express company, to the said defendant, would be paid by the said Howard Dunn, upon delivery of said intoxicating liquor to the said Howard Dunn, at said station of Burton.

“That said- defendant, William Mullin, then knowing that the sale of intoxicating liquor, as a beverage, at said station of Burton, in said township of Green, without the limits of the. municipal corporations of said township, was prohibited by law and unlawful, did, on the fifteenth day of September, A. D. 1906, then set apart from his stock, address to, and ship by Adams Express Company, a common carrier, to said Howard Dunn, at the said station of Burton, in Green *362township, Harrison county, Ohio, and without the limits of the municipal corporations of said township, one case of intoxicating liquor, to-wit, ‘beer,’ to be used as a beverage. Said intoxicating liquor to be delivered to the said Howard Dunn, upon payment by him of the price of said intoxicating liquor, the express charges, and the charges for forwarding said consideration to the defendant.

“That the said intoxicating liquor was delivered by the said express company, as addressed by the said defendant, William Mullin, to the said Howard Dunn, at said station of Burton, in the said township of Green, Harrison county, Ohio, and without the limits of the municipal corporations of said township, and the said Howard Dunn, on the said fifteenth day of September, A. D. 1906, then and there received said intoxicating liquor, to be used as a beverage, from the said express company, at said station of Burton, and, at the same time and place paid the said express company, for the said defendant, William Mullin, the price aforesaid for said liquor, to-wit, the sum of two dollars, the express charges on same, and the charges for forwarding said consideration to the said defendant.”

The court found the defendant, William Mullin, guilty as he stood charged in and by said indictment and sentenced him to pay a fine of fifty dollars and to be imprisoned in the Harrison county jail for a period of ten days. The defendant filed his motion for a new trial, which motion was overruled by the court and a new trial refused. Thereupon the defendant, William Mullin, prosecuted error to the circuit court of Harrison county where *363the judgment of the court of common pleas was reversed and the defendant discharged. To this judgment of the circuit court the State of Ohio prosecutes error.

*Mr. E. S. McNamee,*prosecuting attorney, for plaintiff in error.

In a number of decisions it has been held that for the purpose of determining whether the vendor has violated the liquor laws in force where the vendee lives, a sale C. O. D. is not complete until delivery, acceptance and payment of the price by the person ordering the liquor; and that the common carrier, in all such cases, is the agent of^the shipper. *United States*v. *Shriver,*23 Fed. Rep., 134; *United States*v. *Cline,*26 Fed. Rep., 515; *State*v. *Express Co.,*70 Ia., 271; *State*v. *Wingfield,*115 Mo., 428; *State*v. *Houts,*36 Mo. App., 265; *Crabb*v. *State,*15 S. E. Rep., 455; *Wagner*v. *Hattack,*3 Colo., 176; *Bank*v. *McGrew,*59 Fed. Rep., 972; *Ramish*v. *Kirschbraun & Sons,*107 Cal., 659; *Baker*v. *Railway Co.,*98 Ia., 438; *Refining Co.*v. *Refining Co.,*104 Ky., 559; *State*v. *O’Neil,*58 Vt., 140; *O’Neil*v. *Vermont,*144 U. S., 342.

Where the buyer is by the terms of the sale bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into possession of the buyer. *Bonham*v. *Hamilton, 66*Ohio St., 90.

The title in sales of personalty passes when *364everything which has been contracted to be done has been completed by the vendor and the vendee.

If anything is left undone by either the vendor or the vendee, the sale is not completed, and the place where this act is completed determines the point where the sale is made. Benjamin on Sales, par. 311, 319, 320, 693, and chapter six on the *jus disponendi.*Newark on Sales, Section 375.

If by the terms of the contract, the seller is required to 'send or forward, or deliver the goods to the buyer, the title and risk remain in the seller until the transportation is at an end, or the goods are delivered in accordance with the contract, after which time the title is vested in the buyer. *Buckingham v*. *Dake,*112 Fed. Rep., 258; *Iron Co.*v. *Manufacturing Co., 80*Fed. Rep., 878; *Phosphate Co.*v. *Grafftin,*58 Fed. Rep., 550; *Sims*v. *Railroad Co.,*130 N. Car., 556.

In all sales and shipments of goods where the vendor retains control of the goods at the terminus for the purpose of exacting payment before actual possession by the purchaser is permitted', then the fact of delivery to the carrier is not, of itself, delivery to the purchaser. *Village of Bellefontaine*v. *Vassaux,*55 Ohio St., 323; *Emery’s Sons*v. *Bank,*25 Ohio St., 365; *Lane*v. *Chadwick,*146 Mass., 68.

*Mr. R. H. Minteer,*for defendant in error, filed no brief.

Crew, J.

The law is well settled, in the absence of agreement to the contrary, that the delivery of goods to a common carrier, and especially *365to one designated by the purchaser, for conveyance to him or to a place designated by him, constitutes a delivery to and receipt by the purchaser; and such delivery if in the usual course of business, or in pursuance of directions given by the purchaser, effects a transfer of .title to the property so delivered. In such cases the carrier is, in contemplation of law, the bailee of the person *to*whom and not *by*whom the goods are sent, the latter, in employing the carrier, being considered as the agent of the former for that purpose; Benjamin on Sales (7 Am. ed.), Section 181; Story on Sales (4 ed.), Section 306; 24 Am. & Eng. Éncy. Law, 1071, and cases there cited. When upon the sale of personal property in possession of the vendor the terms of sale have been agreed upon and assented to. by the parties, and the seller on his part has fully performed all things required of him by the terms of the contract, and only delivery remains to be made, the contract of sale between the parties is so far absolute that title to the subject-matter of the sale passes to the purchaser even though he be not entitled to possession of the goods purchased until he pays the consideration agreed upon. Judge Story in his work on Sales, at Section 300, states the law as follows: “Where the seller has performed all that is required of him by the terms of the contract, as to all of the goods, and delivery alone remains to be made, the property vests in the buyer, so as to subject him to the risk of any accident which may befall the subject-matter of the sale. It is not necessary for the seller to deliver the goods to the buyer, in order to transfer *366the title, since the right of property does not depend upon the actual possession. Although, therefore, the seller has a right of lien upon them and cannot be forced to surrender possession until payment is made of the price, yet the goods may be, nevertheless, the property of the buyer.” The authorities in support of the principles above announced are so uniform and consistent that further citations seem unnecessary. Applying then, to the case in hand, these apparently well settled rules and principles, the sale of intoxicating liquors here in question must, we think, upon the agreed facts in this case, be held to have been made at Amsterdam, and not at Burton Station. The pertinent and essential principles of the law of sales which, applied to the agreed facts, must govern and control in the present case, are clearly and succinctly stated in *Pilgreen*v. *State, 71*Ala., 368, a case directly in point. In that case a conviction was had under a statute making it unlawful to sell intoxicating liquors within five miles of certain churches in Columbiana. The defendant was a licensed liquor dealer doing business at Calera, twelve miles distant. He received by mail an order from one Dollar, requesting that he would send to him at Columbiana, a half gallon of whiskey by the Southern Express Company, marked C. O. D. The defendant filled the order at Calera, there delivered the whiskey to the express company and by the company it was delivered to Dollar at Columbiana, where he paid the price and all charges to the express company from whom the defendant received the price at Calera Upon these facts the supreme court held that Calera was *367the place of sale. Brickell, C. J., delivering the opinion of the court said: “All dealings between buyer and seller were at Calera. There the offer of the buyer was received, accepted and acted upon, and there every act was done which it was intended the seller should do. The general property in the thing sold there passed to the buyer by delivery to the carrier of his own appointment, though he could not entitle himself to possession until he paid the price to the carrier. The carrier was his agent to receive the thing sold at Calera, and was the agent of the seller to receive the price. It would have been a neglect of duty as a collecting agent, rendering the express company liable to the seller, if there had been a delivery of the whiskey without payment of the price; and if possession had been wrongfully obtained, it may be the seller could have reclaimed it. The general property, however, passed to the buyer by the delivery to the express company at Calera; the risk of loss then passed to him though there may have remained in the seller a special property, and though the buyer could not, without payment of the price, entitle himself to the absolute property, and to the actual possession. * * * A sale, which will be in violation of the statute under which the conviction was had, must, within the designated locality, pass the title; a sale made in a different locality, where the liquor is set apart and delivered to the purchaser, or to a carrier for him, passing title, is not within its words or spirit.”

In *State*v. *Intoxicating Liquors, E. C. Moffitt, Claimant,*73 Me., 278, the claimant, Moffitt. sent *368an order to a firm in Boston, for whiskey to be forwarded to him by express C. O. D. at Winthrop, in the state of Maine. The whiskey was sent as ordered. Immediately upon its arrival, the package containing the whiskey was seized by the authorities as.liable to confiscation under the Maine liquor law. The claimant tendered the charges to the express company, and intervened in the legal-proceedings claiming the package. The court held he was entitled to it, and ordered it returned to him. In the opinion by Peters, J., it is said: “Undoubtedly the initials C. O. D. mean collect on delivery, or more fully stated, deliver upon payment of the charges due the seller for the price and the carrier for the carriage of the goods. These initials have acquired a fixed and determinate meaning which courts and juries may recognize from their general information. * * * Plere, then, was a sale of the property to the claimant, the price payable on delivery. * * * The title passed to the vendee when the bargain was struck. Any loss of the property by accident would have been his loss. The vendor had a lien on the goods for his price. The vendor could sue for the price, and the vendee upon tender of the price could sue for the property. * * * In this case both the seller and purchaser had a qualified right of possession, the seller upon the purchaser’s neglect or refusal to pay for the goods, and the buyer by paying for the same.” In the case at bar it appears from the agreed statement of facts that the sale in question was made upon a written order addressed to the seller, William Mullin, whose place of business was in the village of *369Amsterdam. It was there that the offer of Dunn, the purchaser, was received, accepted and- acted upon. Upon receipt of the order, the beer ordered was set apart, and in accordance with the express directions of the purchaser, was delivered to and accepted by, a carrier of his selection, to be transported to him at Burton Station, he, as purchaser and consignee, to pay the cost of transportation. When the order sent by Dunn was received and acted upon by Mullin, and the property ordered had been delivered by him to the express company as requested by Dunn, the contract of sale was so far complete that title to the property passed to the purchaser, and a right of action accrued to the seller for the recovery of the purchase price. The mere fact that the goods were sent marked C. O. D. did not, in this case, constitute the express company the agent of Mullin for the purpose of making delivery to the purchaser at Burton Station, of the goods sold, for in contemplation of law, delivery had already been made at' Amsterdam. The express company, while undoubtedly the agent of Mullin to receive the price, was the agent of Dunn, the purchaser, to receive for him at Amsterdam, the property purchased. Hence, the sale was a sale at Amsterdam, and title to the property sold, there passed to the purchaser. *Norris*v. *State,*25 Ohio St., 217; *Commonwealth*v. Fleming, 130 Pa. St., 138; *Garbracht*v. *The Commonwealth,*96 Pa. St., 449; *State*v. *Carl & Tobey,*43 Ark. 353; Black on Intoxicating Liquors, Section 434; *Higgins*v. *Murray,*73 N. Y., 252; 1 Parsons on Contracts, Section 533.

The cases of *State*v. *O’Neil,*58 Vt., 140, and *370*The Village of Bellefontaine*v. *Vassaux,*55 Ohio St., 323, are relied upon by counsel for plaintiff in error as supporting his contention that the sale of intoxicating liquors here in question, was a sale made at the place of destination and not at the place of shipment. Both of these cases, however, are, upon the controlling facts, clearly distinguishable from the present case. In *State*v. *O’Neil,*at the time the liquor was delivered to the express company for transportation, there was attached to the bill of said liquor as part of the contract of delivery, the following express written instructions : “Do not deliver the whole or any part of the goods accompanying this bill until you receive pay therefor. * * * If goods are refused, or parties cannot be found, notify the office from whence received with names and dates, and await further instructions.” The court in the opinion in that case, discussing the effect of such a delivery to the carrier, say: “Attached to the very body of the contract, and to the act of delivery to the carrier, was the condition of payment before delivery of possession to the consignee. With this condition unfulfilled and not waived, it would be impossible to say that a delivery to the carrier was *intended*by the consignor as a delivery to the consignee, or as a surrender of the legal- title. The goods were entrusted to the carrier to transport to the place of destination named, there to present them for acceptance to the consignee, and *if*he accepted them and paid the accompanying invoice and the transportation charges, to deliver them to him; otherwise, to notify the consignor and hold them subject to his order. It is difficult *371to see how a seller could more positively and unequivocally express his intention *not*to relinquish his right of property or possession in goods until payment of the purchase price than by this method of shipment. We do not think the case is distinguishable in principle from that of a vendor who sends his clerk or agent to deliver the goods, or forwards them to, or makes them deliverable upon the o^der of, his agent, with instructions not to deliver them except on payment of the price, or performance of some other specified condition precedent by the vendee.” As showing that the case of *Bellefontaine*v. *Vassaux*does not support the contention of counsel for plaintiff in error, but is in entire harmony with the authorities above cited, we need only call attention to the first two clauses of the syllabus in that case; they read as follows: ‘T. The general rule is that title to goods intended to be transported passes from the vendor to the purchaser upon delivery by the former to a common carrier consigned to the purchaser, whether paid for or not. But if the vendor consigns the goods nominally to the purchaser, but actually in care of his own storekeeper, who is to retain them in control and give possession to the purchaser only on payment of the purchase price, then the delivery to the common carrier is not, in law, delivery to the purchaser. 2. Under such circumstances, the shipment being in effect to the vendor himself, the delivery; when it occurs, would be at the storehouse of the vendor; and the transaction would not be a completed sale at the point of shipment.” We are of opinion that upon the agreed facts, the judgment of conviction in the *372present case was properly reversed by the circuit court and the defendant discharged.

*Judgment affirmed.*

Price, C. Si-iauck, Summers, Spear and Davis., JJ., concur.