of his first name Hermann, and then putting the Jan. '92, 74, 75. Nor is the codicil properly executed by a signature, for the signature is incomplete and the evidence shows that the testator so regarded it. The learned Court below were quite right in saying, "Exactly what constitutes a signing has never been reduced to a judicial formula . . The principle upon which these cases proceeded was that whatever the testator or grantor was shown to have intended as his signature, was a valid signing, no matter how imperfect or unfinished or fantastical or illegible, or even false, the separate characters or symbols he used might be, when critically judged." But even by this test nothing is a signature unless it is meant by the signer to be such, and this requirement is destructive of the present case, for the facts do not show that the testator regarded this stroke of his pen as his signature. On the contrary they show that not only to a critical judgment, but to the testator himself there was no signature. His expression: "I cannot sign it now," after the stroke had been made, proves conclusively that he did not consider that he had signed and intentionally postponed doing so until a future occasion. February 4, 1892. Commonwealth v. Hess. Same v. Ginader. Liquor law-Bottler-May sell to customers in a county other than that in which his license is granted if the sale is made in the latter county -Right to deliver goods so sold-Title to personal property-How passed. A bottler duly licensed may sell his liquors at wholesale, not only to customers in the county in which he is licensed, but throughout the State, and the country at large; but the sales must be made in the county in which the license is granted. It is not necessary, however, that a retail dealer from an adjoining county should call at the place of business of the wholesale dealer in order to make his purchase. Goods may be ordered by mail, and delivered by the wholesale dealer at the address of the purchaser either by common carrier or by his own wagons. H., a bottler licensed in the city of Philadelphia, was in the habit of receiving orders at his place of business, from week to week, from licensed hotelkeepers in Montgomery County. Upon receipt of the orders, the goods were set apart and charged to the purchasers upon H.'s books, the sale in each instance being upon credit. The goods were then either loaded upon defendant's delivery wagon, and delivered by the driver to the purchasers in the usual course of business, or were shipped by railroad to the pur chasers: Held, that H. was not indictable for selling liquor without a license. Whether the title to personal property passes by a sale depends upon the intention of the parties, to be derived from the contract to sell and its circumstances, and actual delivery is only a circumstance. A sale of personal property passes the title, as between vendor and vendee, when such property has been designated and set apart. In Knox's Estate, 131 Pa. 220, the subject of signatures was considered with much care, and cases were cited in which signatures lacking various elements of the full normal and complete name had been held valid, but in none of the cases there cited or since brought to our attention was the signature incomplete to the testator's own understanding and intent. The result of the cases is thus expressed: "The English and some American cases hold that a signature by initials only, or otherwise informal and short of the full name, may be a valid execution of a will or a contract, if the intent to execute is apparent." Appeal of Francis Hess, and appeal of George Further consideration confirms us in the correct-Ginader, defendants, from the sentence of the ness of this proposition, but barring any sudden Quarter Sessions of Montgomery County upon incapacity to complete by reason of the extremity the conviction of defendants for selling liquor of last sickness, of which there can be no claim without a license. here, it is an indispensable element that the signature actually made shall be a full and complete signature according to the intention and understanding of the testator. The undisputed facts in the present case show conclusively that the completed intent to execute this codicil in any way whatever, is entirely wanting. Decree reversed at the cost of the appellees. H. S. P. N. Francis Hess, holding a bottler's license in the city of Philadelphia, and George Ginader, one of his employés, were indicted in Montgomery County for selling liquor without a license. Both were convicted and sentenced by SWARTZ, P. J., to pay a fine of $500 each, and to an imprisonment of three months. Defendants appealed, assigning the charge and judgment of the Court for error. The facts are fully set forth in the opinion of the Supreme Court. N. H. Larzelere (M. M. Gibson with him), for appellants. B. E. Chain (Henry M. Brownback, district attorney, with him), for the Commonwealth. COMMONWEALTH V. HESS. It must be conceded at the outset that the defendant was pursuing a lawful business. It is March 28, 1892. PAXSON, C. J. The de- not only expressly authorized by law, but he has fendant was convicted in the Court below of sell-paid a large sum of money for the privilege of ing liquor without a license. The whole case is developed by the specification of error, which is as follows: carrying it on. It was not denied, and could not well be, under the Act of Assembly, and our decisions thereon, that he has a right to sell his "The Court erred in its charge to the jury liquors at wholesale, not only to customers in the upon the following facts in the case, the whole of city of Philadelphia, but throughout the State which charge is specified as error, and which is and the country at large. It is well known that as follows: Upon the uncontradicted facts as the business of wholesale dealers is not limited to established by the Commonwealth, and not denied any particular locality, but extends in many by the defence, which are as follows: Francis instances over many portions of the civilized Hess has a bottler's license in the city of Phila- world. In the case of wholesale dealers in liquor, delphia, doing business at No. 2440 Mascher they are restrained by the statute and the terms Street, in said city; for some time within two of their license to sales in the county in which years, and prior to June 1, 1891, Frank Cott- their license was granted. It does not follow, man, a licensed hotel-keeper at Jenkintown, however, and it is not the law, that their sales Montgomery County, Pennsylvania, sent to are limited to persons residing in said county. It Hess's place of business in Philadelphia orders is not denied, and it is settled law, that the defrom week to week for lager beer and porter, the fendant may sell to any retail dealer in any part whole amount of said orders being about $175; of the Commonwealth, provided the sales are that upon the receipt of said orders by Hess, the made at his place of business in the county of material ordered was set apart and charged to Philadelphia. Such sales may be made in the Cottman upon the books of Hess, and was then usual course of business. It is not necessary that loaded upon Hess's delivery wagon, and by him a retail dealer from an adjoining county should and an employé named George Ginader, driven call at the place of business of the wholesale to Jenkintown, in Montgomery County, and de-dealer, in the county of Philadelphia, in order to livered to Cottman; bills were afterwards made make his purchase. He may order his goods by out and sent to Cottman, who paid them either by checks sent to Philadelphia, or in cash paid in person at the place of business of Hess in Philadelphia, after the delivery was made to Cottman at his place of business. "A similar transaction took place between said Francis Hess and George Ginader, and Harry J. Wilson, a keeper of a licensed hotel at Hatboro, Montgomery County, on six to eight occasions in the months of April and May, 1891; there were also orders of Cottman and Wilson filled by shipment by railroad to Jenkintown or Hatboro; Hess had no license from the Court of Montgomery County.' mail, as in other cases. When the law licensed the wholesale dealer to carry on his business in the county of Philadelphia, it carried with it the authority to conduct it according to the usual mode of business, but it does not justify him in peddling his goods around in other counties, and selling them there. So much was decided in Commonwealth v. Holstine, 132 Pa. 357, where it was held that the driver in the employ of a bottler having a license in Philadelphia County, who took orders in Montgomery County for liquors, which were subsequently loaded upon the defendant's wagon in Philadelphia, and delivered to the purchasers in Montgomery County by said "The Court is respectfully asked to charge driver, who collected the money therefor, was the jury that there were no violations of the properly convicted and sentenced for selling liquor laws as set out in said bill of indictment, liquors without license in Montgomery County. and the verdict of the jury must be not guilty. It was said in the opinion of the Court: "This "THE COURT. Gentlemen of the jury, I can. was clearly a sale and delivery in Montgomery not instruct you as requested. The defendant County. The license held by Mr. Otto authorundertook to deliver by the wagon of Hess, and ized him to sell in Philadelphia. He had a right the sale was completed in this county. If you to sell to any person in this Commonwealth, profind the facts as set forth in the above request, Ivided the sale was made at his place of business : charge you that they show a violation of the Commonwealth v. Fleming, 130 Pa. 138. But liquor laws as set forth and charged in the bill he had no right to peddle his beer through other of indictment. counties not covered by his license, and make sales there." We accordingly held that as his employer was not protected by a license, the defendant was not protected. "I instruct you, however, as requested, that you are the judges of the law as well as of the facts, under the advice and direction of the Court. You are to look to the Court for the best evidence of the law, just as you are to look to the witnesses for the best evidence of the facts." In the case in hand, the defendant was not peddling his beer through Montgomery County. The driver of his wagon did not solicit orders in that county. The defendant delivered liquors | in Montgomery County to the purchaser, and a only upon orders which had been received in the large number of authorities were cited in support usual course of business at his place in Philadel- of this view. The pith of the argument upon phia. It was urged, however, that because the this point, and the nature of the authorities delivery in Montgomery County had been made cited, may be gathered from four lines of the by means of his own wagon, that it was a sale printed argument on behalf of the Commowealth. in said county, and a violation of the license law. They are as follows: "Had these goods been The Court below so held, and sentenced the de- levied upon in virtue of an execution creditor of fendant to pay a fine of $500, and to undergo an Hess (defendant) could it be contended that they imprisonment in the Montgomery County prison could not be sold under that execution? We can for three months. find no decisions sustaining a contrary view." If we concede the soundness of this proposition, and that the authorities cited fully sustain it, it has no bearing upon the case. The question is not, whether there was such a sale and delivery as would pass the title as against the execution creditors of the defendant. The true question is, and it has been wholly overlooked in many of the cases, whether there was a sale and delivery, as It appears from the conceded facts, that the defendant was in the habit of receiving orders at his place of business in Philadelphia, from week to week, for lager beer and porter from Frank Cottman, a licensed hotel keeper at Jenkintown, Montgomery County, and from Harry J. Wilson, a licensed hotel keeper at Hatboro, in said county. Upon the receipt of such orders, the material so ordered was set apart and charged to the pur-between the vendor and vendee. Our books are chaser upon the books of the defendant, the sale in each instance being upon credit. The goods thus sold and set apart to the respective purchasers were then either loaded upon defendant's delivery wagon, and delivered by the driver of said wagon to the purchaser, in the usual course of business, or were shipped by railroad to the purchaser. It was conceded upon the argument that had the liquors in question been shipped by rail, or by any other common carrier to the purchaser, it would have been a sale and delivery in Philadelphia, and not a violation of the license law. This is the doctrine of Commonwealth v. Fleming, supra, where it was held that if a liquor dealer in Allegheny County receive an order for liquor, to be shipped to the purchaser in Mercer County, C. O. D., and in pursuance of the order, the liquor be delivered to a common carrier in Allegheny County for transportation to the vendee, at the latter's expense, the delivery to the carrier is a delivery to the purchaser, in such a sense as to complete the sale in Allegheny County. If we sustain the Court below in this case, we are brought face to face with this proposition: that if a wholesale dealer in liquor receives an order from a customer in an adjoining county, and in pursuance of such order delivers the liquor to a common carrier for transportation, he is a law abiding citizen; whereas, if he delivers the liquor in his own wagon, in the usual course of business, he is a criminal, and liable to both fine and imprisonment. If this be the law, it is certainly not the "perfection of reason." On the contrary, it is the climax of absurdity, and cannot fail to shock the common sense of every business man in the community. The principle relied upon by the Commonwealth, to sustain this conviction, is that the sale of liquor was not complete until its delivery full of cases, in which the sale has been held to be incomplete, for want of a delivery to the vendee, as against creditors, but in no one of them has it ever been held that it was not good between the parties, and that the title did not pass as to them. As before stated, when the defendant received the orders from his customer, the goods were set apart for the latter, and charged to him. Had the order been accompanied by the cash, and the goods thus set apart, no one would contend. that the sale was not complete as between the parties. Can it make any possible difference, that the liquors were charged to the purchasers upon the books of the defendant? The giving of a credit was as effective in passing the title as the payment of the money when the order was given. The acceptance of the order in either case is effective to pass the title as between vendor and vendee. In such case, the vendee has the right of property with the right of possession. Under all the authorities, the vendor acts as bailee, and not as owner, in carrying or delivering the goods. This is the rule where the rights of creditors, or bona fide purchasers without notice, do not intervene. There is abundant authority for this principle. The general rule is that it is the contract to sell a chattel, and not payment or delivery which passes the property: Benjamin on Sales, 357. The rule that the contract of sale passes the property immediately, before payment or change of possession, has been universally recognized in the United States: Id. 329. There may be a bargain and sale of goods sufficient to transfer the title, and this to support an action for goods bargained or sold, without any transfer of delivery as will amount to a transfer of possession: Frazier v. Simmons, 139 Mass. 531. "When the terms of sale are agreed upon, and the bargain is struck, and everything the seller that the sales thus represented by the orders were not made in the city, and hence they were not taxable on the amount so sold; but it was held by this Court that the goods thus ordered through their agents, put up at their store, and shipped thence to their consumers, were sold in the city, and that the amount should be included in their account sales returned for taxation." was licensed to sell liquor at his store only. Liquor was ordered by a dealer in another town, under a previous arrangement, whereby the seller agreed to deliver goods so ordered at the depot addressed. Having so delivered, the seller brought an action for the price. It was contested as an illegal sale, but it was in evidence that the seller expressly declared at the time of the contract the sales are to be made at my store,' and a verdict for the price was sustained." has to do with the goods is complete, the contract goods to the purchasers by the most direct of sale, says Chancellor KENT, becomes absolute means of conveyance. Shriver & Co. contended as between the parties, without actual payment or delivery, and the property, and the risk of accident to the goods vests in the buyer. He is entitled to the goods on payment or tender of the price, but not otherwise, when nothing is said at the sale, as to the time of delivery, or the terms of payment. But if the goods are sold on credit and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately en- Whether the title of personal property passes titled to the possession, and the right of property by a sale depends upon the intent of the parties. vests at once in him:" Leonard v. Davis, 1 Hence it was said by Mr. Benjamin, in his valuaBlack, 476, citing 2 Kent's Com. 671; Bradeen v. ble treatise on Sales: "But the property passes Brooks, 22 Me. 470; Davis v. Moore, 13 Id. 427. at once on the sale, if such is the intent, though In Dixon v. Yates, 5 Barn. & Adol. 313, the seller is afterwards to make the delivery of Baron PARKE lays down the rule as follows: the goods. Such intent may be expressly declared, "I take it to be clear that by the law of Eng- or may be inferred from the circumstances. Thus land the sale of a specific chattel passes the prop-in Lynch v. O'Donnell, 127 Mass. 311, the seller erty in it without delivery. Where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel by the vendor, and the assent of the vendee to take the specific chattel and to pay the price, is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bar gainee." The same principle was recognized in Iowa, in Dows v. Morse, 17 N. W. R. 495, where it was held that when, under a contract, corn was set apart in binns, and marked with the purchaser's name, there was a designation of the corn for the purchaser. In our own case of Garbracht v. Commonwealth, 96 Pa. 449, our brother STERRETT illustrates the principle thus: "For example, a merchant in New York orders goods from a Boston house, and they are consigned thence to him, either by a carrier of his own selection or in the usual course of trade; the transaction is an executed Boston contract: 2 Parsons on Contracts, 586. The same principle is recognized in Shriver v. Pittsburgh, 16 P. F. Smith, 446; Finch v. Mansfield, 97 Mass. 89. In the former case the city of Pittsburgh was authorized to impose a tax upon all articles of trade and commerce sold in said city,' and the question was whether certain goods were sold in the city. About one-sixth of the gross sales of Shriver & Co., wholesale grocers, were made directly at their store in the city without the intervention of outside agents. The other fivesixths were effected through agents employed for the purpose of procuring orders and making contracts of sale outside the city. These orders were transmitted to the firm, who filled them at their store in Pittsburgh and consigned the In Terry v. Wheeler, 25 New York, 520, it was said by SELDON, J., "No case has been referred to by counsel, nor have I discovered any, in which, when the article sold was perfectly identified and paid for, it was held that a stipulation of the seller to deliver at a particular place prevented the title from passing. When the sale appears to be absolute, the identity of the thing fixed, and the price for it paid, I see no room for an inference that the property remains the seller's merely because he had engaged to transport it to a given point. I think in such case this property passes at the time of the contract, and that in carrying it the seller acts as bailee and not as owner." Where the sale has been made upon a credit, as in this case, the rule is the same. For, when sales are made upon credit, the property identified and separated, the "legal effect then is that there has been an actual transfer of title and an actual transfer of the right of possession by the bargain:" Benj. on Sales, 882. It is settled law that a sale of personal property passes the title as between vendor and vendee, when such property has been designated and set apart by the former: Dennis v. Alexander, 3 Pa. 50. It was said by GIBSON, C. J., in Scott v. Wells, 6 W. & S., at page 367: "Even where actual possession has not been taken the ownership and risk pass by the contract, if nothing remains to be done to the property by the vendor, such as counting, measuring, weighing, or filling up, to ascertain the number, quantity, or weight. Thus in Rugg v. Minett, 11 East, plying a principle of law which was only in210, turpentine had been sold at so much the tended to protect execution creditors, bona fide hundredweight in casks, to be taken at the purchasers, or the right of stoppage in transitu. marked quantity, except two, out of which the This principle as before observed, has no appliothers were to be filled up before delivery, and cation to cases arising between vendor and venthose two were sold as containing indefinite dee. In applying the law to questions of this quantities. The buyer employed a person to do nature, we cannot wholly ignore the accepted the filling, but before he completed it the ware- principles of right and justice, nor can we in house with its contents was destroyed by fire; considering contract relations ignore the usages and it was held that the property in those filled which the necessities and wants of business have up had passed to the buyers, because nothing re- practically made a part of them. This has somemained to be done to them by the vendors." To times been called the expansive property of the the same point is Winslow v. Leonard, 24 Pa. 14, common law. If the great mass of legal princiwhere it was said by LowRIE, J., "Where the ples, which has descended to us under the name lawful form of contracting is pursued the vesting of the common law, is composed only of iron-clad of the title always depends upon the intention of rules, it would be wholly unsuited to the present the parties, to be derived from the contract and age and generation, and the great changes which its circumstances; and actual delivery, weighing, have taken place, not only in the volume of busiand setting aside the goods are only circumstances ness, but in the mode of conducting it. We are from which the intention may be inferred as mat- constantly applying the accepted principles of the ter of fact: 12 Pick. 76; 20 Id. 230; 3 W. & common law to new phases and modes of doing S. 14. And this is the principle of numerous business. This is a necessity, alike dictated by cases wherein the title has been held to vest even common sense and the necessities of trade. The where there has been no measurement," citing present is a striking illustration of the wisdom of 13 Pick. 175; 5 Met. 452; 5 Johns. 395; 1 this rule. Both the appellant and his customer East, 192; 2 B. & C. 540; 6 W. & S. 357; 6 in Montgomery County were engaged in a lawful Rand. 473; 1 Denio, 48; 4 C. B. R. 364. The business. The appellant had the right to sell, learned Justice also says that much of the con- and his customer in Montgomery County had the fusion of ideas about the vesting of the title on a right to buy, the liquor in question. To say that sale of personal property arises from the mislead- a man who may lawfully sell an article to aning influence of unsuitable analogies. I have other who may lawfully buy it, cannot deliver already referred to one of those unsuitable analo- the article sold by the usual course of business, gies. Justice LoWRIE thus refers to another is to assert a proposition that is absurd upon its "The class of cases which have tended most face. It is not sustained by either authority or powerfully to embarrass this question are those reason. In this case the purchaser was licensed wherein the real question was not, Has the title to retail the beer to his customers. The effect of vested in the vendee? but, Has it absolutely vested this conviction, if sustained by this Court, will as to take away the lien of the vendor for unpaid be merely to compel the appellant to deliver his purchase-money, or his right to stop in transitu? Yet to this class belong most of the older cases which are usually referred to as leading cases in the present question, though they have nothing to do with it; for it is very plain that the title may vest while the vendor has such remaining control over the goods as entitles him to arrest their full delivery in default of payment or on the failure of the vendee." Gonser v. Smith, 115 Pa. 452, recognized and followed Winslow v. Leonard, and affirms the doctrine that the passing of the title upon a sale of chattels depends upon the intention of the parties to be derived from the contract, and its circumstances, and that actual delivery, weighing, and setting aside are only circumstances from which the intention may be inferred. We might multiply authorities upon this point without limit were it necessary. We do not think those cited are in serious conflict with any of our own cases. Where an apparent conflict exists, it is doubtless due to inadvertence in ap liquors by a common carrier, instead of by his own wagon in the usual course of trade. It cannot prevent sales, nor diminish the quantity of, liquors sold and consumed. It imposes a burden upon the wholesale dealer, which is not imposed by the law, and is in violation of the usages of trade. We do not think the Legislature intended, when it licensed the appellant as a wholesale dealer, to prohibit the delivery of goods sold by him in the manner recognized in all other kinds of business. And especially ought we not to indulge in metaphysical hair splitting in the construction of a penal statute, and make men criminals by judicial construction, who are not so in fact or intent. We are of opinion that the learned Judge below erred when he instructed the jury, that the facts as set forth in the specification of error show a violation of the liquor laws of this Commonwealth. The judgment is reversed. |