(lJircuit Oou'l't, B. D.IO'UJa, lv. D. January 8, 1887.)
INToXIOATING LIQuoRs-CONSTITUTIONALITY OF
low A CODE, !'\§ 1523, 1526. Iowa Code, 1523, 1526, limjtingthe giving of licenses to certain classes of citizllDS of Iowa to buy and sell intoxir.ating liquors, for mechanical, medicinal, 'culinary, and purposes only, by pre,;enting citizens of other states from sellIng hquorsm other states, mterfere WIth the freedom of commerce, violate the constitutional to the citizen of each state all the privilegoes and ,immunities of citizens in the several states, and !to I\ot "abridge the privileges or immunities 'of citizens of the United States, ,. :Since the purpose and effect of the act is to make a safeguard against the, un,la;wful selling of liquors.. and not to discriminate against citizens of !ltates. Crl'IZEN OF ANOTHEIt STATl!J":"IoWA CODE, § 1550. Iowa Code, § 1550, provides that all "payments orc6mpensation for intoxicating liquors sold in violation of this chapter shall l1eheld to have been received ill violation of law, and against equity andgpod conscience, and to have'l1\len'received upon a valid promise and' agreement of the receiver, in 'conllideration of the receipt thereof, to pay, on demand, to the person furnishing'8cUchcoDsideration, th.e amount of said money." Helf}" not to apply to payw,ents on a lIale for lawful purposes, but invalid by reason of the fact that the s'eller was a citizen of another state. '
At TIaw.: Demurrer to answer aud counter-claim. Wright, Baldwin k Haldane, for plaintiffs. k Park and Rockafellow k Scott. for defendants.
J. From the averments of the pleadings in this cause, itapJ.};lllt plaintiffs reside and do business in Rock Island, Illinois, as rectifiers and wholesale dealers in spirituous liquor; that the defendant is and hae Peen a qualified and registered pharmacist at AtlantIc. IQwa, holding a permit from the board of supervisors of Cass him to buy and sell intoxicating liquors for purposes.notproJ;Ubited by the staLutes of Iowa; that during the years 1881, 1882, ·.and 1884 the plaintiffs sold to defendant a.bout $6,500 worth ofintoJtiea.ting liquors; that plaintiffs claim there is due from defendant the BUJ;n of$l,OOO, to recover w.hich suit is brought. III and counter-claim filed in the case it is averred that the liquors were;sold in violation of the statute in Iowa, in that the Same were sol4 by plaintiffs at the town of Atlantic, Iowa, the plaintiffs not being authorized under, the laws of Iowa to sell intoxicating liquors for any purpose. The counter-claim is brought for the purpose ofrecQvering back 'from plaintiffs. the amounts ·heretofore paid upon the account in question, under the provisions of section 1550 of the Code of Iowa. The demurrer to the answer and counter-claim presents the question whether, under the statutes of Iowa in force during the years 1881 to 1884, inclusive, persons residing,and carrying on business as rectifiers and wh0lesale dealers in states other than Iowa could lawfully sell intoxiqatingliquQrs to be resold for culinary, sacramental, medicinal, and mecl;ul,uiettl: purposes, toll. registered pharmacist doing business. in Iowa, ,8J)d. :hQlding a proper permit authorizing him to sell liquors for the purv.29F.no.10-28
pose named, provided the contract of sale between the non-resident wholesale dealer and the registered . was :made within the state of Iowa, and ati residence of the Jatter party. . .'. . By section 15230fthe Code it' 'is provided .that I'no perllon shall manufacture or. se1;1, by himself; his clerk, steward, or agent, directly or indirectly, any intoxicating liquors,Axcept as hereinafter, provided." Section 1526 enaqts th,at "any the state, except hotel keepers, keepers of saloons,.eating:'houses, grocery keepers, and corifectioners, is hereby permitted, Within the, county Of his residence, to buy and sell intoxicating liquors med,icinal, culinary, and sacramental purposes only, provided he shall first obtain permission from'the board of supervisors of the cbunty in: which such' business is conducted"as follows." Sections 1q27 to 1532, imllusive. define tbe steps to be takE,ln to procure the named in section 1526, one of the requirements being that the 'appliCant must, bela citizen of the state ofIowa. These severi\t' sections oftheCode were in force when. the liquors in question 'byplai'ntiffs,tD: defendant; and as it is: admitted by 'the <ilemur:rerthat the liquors. were' sold in Iowa, and that the plaintiffs did not have Ii. permit authorizing tbem to sell such Jjquorll,it that the sale was contrary to the express provision of the statute, and therefore invalid, provided such provisions are legal and applicable.' Upon behalfof plaintiffs iHsai'gued that the statute' expressly recognizes the use of,liquors, for:medicinal, mechanical, culinary, and sabramental purposes, as being entirely proper, and does not forbid citizens -ofrowa frOm mafiufacturing'and selling liquors foi-such purposes; and ' that while tbstatemay have tbe:right tOl'egulate thesalethereof,,;stHl such regulatiol1sinust not diseriritinate in favor, of the citizens of the state as against' the citizensof()ther states; that the right to sell liquors for the purposes:haIired: cannot·be permitted to Iowa, ahd be wholly refused to-eitizens of othermtes, without interfering-with the freedom of interstate' commerce; 'and violating that praivislonof the fedr constitution 'which guaranties :to the citizen of each state all the privileges and: :immunities of citizens-in the several states,. and also the, proVIsion which declares that "no state' shaH make orenfbrdELany law which 'shall abridge tbeprivileges or immunities ofcitizens of the United States." If the proWsions of the statute above cited are intended to control the commerce in lilinors to be used ·for mechanical and other legal purposes, '80 as to secure'the: traffic therein ttl 'Citizens of Iowa,and exclude all others from participation; therein, thus intentionally discriminating in favor of the citizens of :Iowa. it that the sections of the statute .providing for. the exclusion of all, save citizehS of Iowa, from the right to engage in such traffic, would be unconstitutional lind void. Com'merce between the states cannot be said to be free, if,by the laws of a state. the sale of a commodity is forbidden if prodtlced or'm.ai:mtaetured in anothel"/stl'l,te,but is permitted if of homeproduotionior manUfacture; ori£ citizens mdtherstates are forbidden, by reason Of such citizenship, to'engage in' the manufacture or sale of a commodity within a state, while the engage therein is permitted to the citizens oftbeilatter
state. Laws regnlatingtrade and'cQmmerce, and which are intended to products of one state exclusive or'superior rights secure to and advantages,' at the 'expense of the citizens of otlier states, cannot be sustained. Ward v.Maryland; 12 Wall. 418; Welton v. K't88OUri, 91 U. S.275; Tiernan v. R1inker, 102 U. S.123; County of Mobile v. Kimball, Id. 691; Webber v. Virginia, 103 U. S. 351. The mere fact, however I that certain state laws may, more orless directly, affect interstate commerce; or persons engaged therein, is not always proof that such laws are beyond the power of the state to enact, or that they violate any of the provisions of the federal constitution. ,There is reserved to .· the several, states the right! of police regulation; that· is to say, the power to enact laws promotive of domestic order, morals, health, and safety. State statutes solely intended for the promotion of these objects would not be rendered invalid by the fact that thereby interstate cdmmercemight be somewhat restricted. In the language of the supreme court in Sherlock v. Alling, 93 U; S. 99-108: .' "In confEllTing upon regulation of commerce, it was never intended' to'cilt the states off from legislating on all subjects relating to the health, life. and safety of their citizens. though the legislation might indirectly affect the commerceof'the country. Legislation, jn a great variety of ways, may aff(\ct COmmerce. and pel'$onsengage4 in it. without constit,uting a regulation of it. within tbemeaning of the constitution." That the states, for the purpose of restricting and eradicating the evils arising from the traffic in intoxicating liquors as a have the right to enact laws prohibitory thereof, cannot be questioned. License <X.t.ses,5 How. 504; Bartemeyerv. Iowa, 18 Wall. 129; Beer Co. v. Ma88achmett8, 97 U.S. 25jJibster v. Kansas, 112 U.,8. 201i S. C. 5 Sup. Ct. Rep. 8. . If,h9wever, in such, acts, provisions are inserted which discriminate in.favor of liquors manufactured in the state as against those manufacttired. in other states, or which protect the home dealer, by exacting a tax or license fee from the non-resident dealer, and not from the home dealer, then such provisions would be contrary to the federal constitution. Thus in Walling v. People, 116 U. S. 446, S. C. 6 Sup. Ct. Rep. 454, it was held that a state statute imposing a tax upon persons, not residents 'of Michigan, who should engage in that state in the business of selling intoxicatinp: liquors to be shipped into. the state, but which did not impose a similar tax upon the sale of liquors manufactured in Michigan, was repugnant to the constitution of the United States. ' Section 155.'5 of the Code of Iowa declares that," whenever the words 'intoxicating liquors'occur in this chapter, the same shall be construed to ttiean alcohol, and all spirituous and vinous liquors: provided, that nothing herein shall be so construed as to forbid the manufacture and sale of beer, cider from apples, or wine from grapes, currants, or other fruits grown in this state." The of this seotion is to enact that the sale of wine is forbidden, :unlessit ill·manufucturedftom the! products of this state. Thisprovision il:l an attempt to discriminate in favor oithe products;of the
state as against those of other states; ahd no reason is perceived. why it does not fall within the rule, so often announced by the supreme court, that legislation forbidding the sale of a commodity if of foreign production, but permitting it if of home production, cannot be sustained as a police regulation, but is clearly an attempt to restrict interstate commerce, and to discriminate against the products and citizens of other states. So long, therefore, as the proviso in section 1555 continued in force, au,thorizing the sale of wine manufactured from· the products of the state, 80 long was the inhibition against the sale of wine manufactured in other states inoperative and void. . The principal question presented by the demurrer, i. whether the provisions of the statute restricting the right to sell liquors in Iowa, for mechanical and other legal purposes, to citizens of the, state are or are not It violation of the federal constitution, is not so readily answered. In the language of the supreme coul't, in Railroad Co! v. Huse:n,95 U. S. 465, "the police power of a state cannot obstruct foreign or interstate under co}or of it, commerce, beyond the necessity objects, not within its scope"cannotbe secured at the expense of the protection ,afforded by the federal constitution;" and yet, as is said in the case, "many acts of a state may, indeed, affect commerce, without amounting to a 'regulation' of it, in ,the constitutional sense of the term. the distinction between that which And it is sometimes difficult to merely affectsodnfluences and that which regulates or furnishes a rule for conduct.'"..." , In the statutes in force up to the year 1884 no provision is found which prevents persons holding a perinit to sell liquors in Iowa from purchasing those ·manufactured in other states, nor from making purchasas thereof from citizens of other states at places outside the boundaries of Iowa.· prohibition or discrimination is based upon the place of their manufacture. So far, therefore, as the products of other states are concerned, they are placed upon an equality with those of the state. The discrimination complained of arises from the fact that the statute provides that no one can sell in Iowa unless he has a permit, and that no one save a citizen of Iowa can procure such permit. It will be noticed that the limitation on the right to sell affects the citizens of the state as well as those of other states, in that the permit can only be procured by a resident of a county in which the permit is issued, and limits the right to sell to a particular house to be named in the permit. There is no doubt that the result of the statute is to entirely deprive citiZens of other states of the right to sell in Iowa intoxicating liquors to be used for mechanical and the other legal purposes. It also practicallyccmfines the right to sell to a small part of the citizens of the state. Was it the intent of the legislature in: enacting these provisions of the statute to grant greater privileges to the citizens of the state than are granted to those of other states, in carrying on the business of buying and selling liquors for legal purposes, or were these provisions enacted as safeguards against violations of the law prohibiting sales of liquors to be.used as a beverage?
KOHN V. 14El,CHER.
The difficulty of preventing eva$iQUs, of the prohibitory law is well known, and it is apparent that the permi8sion to sell for medical and other legal pmposes, unless carefully .gQarded and restricted, might prove to be a ready means for defeating the object and purpose of the statute. The state has the right to adopt all pl'oper police regulations necessary to prevent evasions or violations of the prohibitory statute, and to that end, and for that purpose, has the right to restrict the sale for legal uses to such places, and by such persons, as it may be doomed safe to intrust with the right to sell. In cases in which it has been held that the state, legislation could not be upheld, it will be found, that the provisions of the statute were not intended to guard the community against evils iug from some traffic deemed injurious to the common weal, but were intended to secure to the citizens or products of the state an undue advantage i or, in other words, under the pretext or guise of a police regulation, the true intent of the legislation was to place the prodUCts or citizens of other states at a disadvantage in carrying on commerce, or business, and thereby secure the profits thereof to the citizens of the state enacting the particular law complained of. If the argument of counsel forplaintiif.s is well founded, it would follow that under the fourteenth amendment to the constitution of the United States, prohibiting the abridgment of the privileges or immunities of citizens of the United Statas, it ,would be beyond the power of the states to limit, as among its own citizens, the right tose11 liquors for legal purposes, or to limit the right to sell,poisons of any kind, or to require that steam-boilertl or other dangerous, machinery can only be operated by skilled engineers. The fourteenth amendment was not adopted for the purpose of limiting the fair and proper exercise of the power of police regulation on part of the states. An impartial examination of the several sections of the statute of Iowa on the supject of the sale of liquors for legal purposes, shows that the restrictions complained of were adopted, not for the purpose of securing an undue advantage to the citizens of the state, but for the purpose of prevt'nting violations of the prohibitory law of the state; and although, in effect, the citizens of other states, as well as the larger part of the citizens of Iowa, are debarred from selling in Iowa liquors to be resold for legal purposes, and in that sense commerce between the states may be affected, yet this is but an incidental result; and as the intent and purpose of the restrictions, i. e., preventing violations of the prohibitory law, are within the police power of the state, it cannot be held that the sectIOns of the statute under consideration violate any of the provisions of the federal constitution; and, being therefore valid and binding, it follows that a eale of intoxicating liquors made in Iowa for any purpose, by a person not holding a permit to sell, is unlawful, and no action can be maintained to recover the price of such liquors. The demurrer to the answer must therefore be overruled, and it is sO ordered. The demjltrer also applies to the counter-claim in which defendant seeks to recover judgment for the amounts paid on account for the liquors .Bold under the circumstances hereinbefore stated. Counsel seem to have
FEI)E1l.AL ' Jl,EPORTER.
8.ssumed'that the decision of the question presented by tl,1e demurrer to the answer would also settle the questi6n as to' the right of the :party to recover back the sums paid on account, and hence have not discussed this question in argument, It maybe that this assumption is entirely well founded, and itcerta:inlyunds support in the opinion ofthe supreme court of Iowa in the (lase of Becker v. Betten, 39 Iowa,668. The questionarises on the construction of section 1550 of the Code, which: provides that "all payments orcoll1pensation for intoxicating liquors sold in violation' ofthis'chapter** shall be held to have been received in'violation oflaw, and against equity and good conscience, and to have been received upon a valid promise and agreement of the receiver, in COD.' sideratiol1ofthereceipt thereof, to pay on demand, to the person furnishing such consideration, thea1nount of said money." When liquors are sold to a person in Iowa to be resold for use, as a beverage, there is no question that-theparties intend to violate the prohibitory law of the state, and the vendor knows that the liquors which he furnishes for this purpoSe to 'the vendee are contraband, and, in effect, have no legal value in the handS of the vendee, as he has no right to sell them in Iowa for use as a beverage, and, cannot make them the subject ofa legal sale. In all such cases there'is a foundation for the theory of the statute tbat, as the vendor ofthe liquors did not transfer to the vendee anything of legal value, aU payments made therefor are without COllsideration, and the vendee 'tnayrecover back the payments thus made because he received no consideratidn ,therefor; tbat is, notbing of any legal value. In cases, however, where the liquors are sold to be used for legal purposes" to a person having the tight to sell the same, tae vendee received from. the vendor something having in his hands a legal as well as actual'Villue. Tbe statute of Iowa, in order to close the avenues to evasions Of tbe prohibitory law, bas enacted that no one in Iowa shall have the right to sell liquors, even fodegal uses, except parties holding permits. The 'Sales rnadein tbe pres.ent case were made in violation of tbe law of Iowa, not because the liqu9rswere sold to be used as II. beverage, but because, while tbe 'pllrpose for whicb they were sold was entirely legal,tbe party selling had not'tbe legal right so to do. The inhibition applies to tbe person, and not to the property. The plaintiff, not baving the legal right to sell. could not make a legal contract of sale in Iowa, and hence, coming into Iowa to seek a recovery for the liquors sold, he cannot maintain the action, because he cannot show a legal contract with defendant. Suppose, however, the defendant should go to Illinois, and, while there, sbouldpay, in Illinois, to the plaintiff, the value of tbeliquors sold in Iowa, and then, upon his return to Iowa, sbould bring suit to recover back the money thus ,paid in IlJjnois. In tbis case, tbe vendor of the liquors would not he seeking the aid of the law' of Iowa to· enforce a contract of sale for liquors. The vendee would be seeking to recover back, in Iowa, money paid, not in'Iowa, but· in Illinois. The consideration for which' he paid'the money' was liquors wbich had a olegal and actual value in his hands. True, they were solei under such circulnstances as tbat, in Iowaj'au ae-
tion for their.value could not be m'll:inmined by the vendor;. but when they passed into the possession of the vendee he had a right to'.sell the same. .In his' hands" for the purpose for which they were. bought, they were property having a legal value. Having thus received the same, if the vendee should then go to Illinois, and the parties, recognizing the fact that the contragt Of sale was void, should in Illinoh'l make anew contract in regard to the same, would not the latter contract be :valid? !fa person sells liquors to asalootl-keeper in Iowa, with the' intent that the'same should be resoldasa beverage in violation of the law., and should deliver the same, he cannot maintain an action for the.price or value thereof, nor could he maintain an action of, replevin to recover back the possession of the goods. The courts of Iowa would afford him no aid to recover liquors, the possession of which he parted with, with the intent that the same should be used: in violation of the laws of tl;1e state. Would the same rule apply if a resident of Illinois should, in Iowa., ·sell liquors to be used for legal purposes only, to a person authorized to· Sell in Iowa?' Tn such case, the contract ofsale would be void; because the resident of Illinois had not,authority to sell without a permit, which· he is debarred from getting because the same cari only be issued.to a citizen of Iowa.; Could not the vendor, under these circumstances, demand back the liquors,as long as they remained in ppssession oithe vendee, and;>:if necesl:\ary, retakepossesaion by proceedings in replevin?;; True, he had violated the law of Iowa' by selling withouta permit; but the violation· 'of the statute did not consist in selling .liquors to be used as 'a beverage,. or in introducing liquors into the state to be used or sold. by ·fotan illegal purpose, but in selling to an authorized personlfor leg:nl purposes, without having a permit. liquors, when deliv.ered to the vendee l would, not be liable to be seized andeonfiscated under the sections of the statute authorizing the seizureaaddestruction of liquorR intended to be used iIi vi91ationof the statute. In whom would be the legal title to the liquor? Would it not be ,in ·the vendor? If so, why may he not retake: the posSeSsion of the property?, However this may be,if the ,vendee, having received the liquors, and sold the samein Iowa, fora lawful purpose, should then, in Illinois, pay the valuether.eof to the vendor, could he main tam an action in Iowa to recover back the money thus paid, even under; the provision of section 1550? In what respect could it fairly be said that the vendaI', hi i'eceivingpayment in Illinois, violated any law of Iowa? The liquoI'S he had delivered to the vendee had not been used fat any purpose prohibited by the statutes of Iowa. They lawfully belonged to the vendor, were property in his hands, and were property when .delivered to the vendee, and were not delivered to the vendee to be usedAor a.ny illegalpu:rpose. , ' Under such circumstances, while the vendor could not maintain an action in Iowa on the contract for sale, was' there anything unlacwful in receivin$,·and in the vendee paying him, the value of the good&?, ,If not, 't1i:en upon what ground: 'can the vendee seek ·to recover back. ithe sumlFvoluntarily paid? The only answel"oisthat thestatutei of I I(i),W6' ao
provides, and it cannot be denied that the section is very brO:-ld in its terms; yet, as is said by thesapreme court of Iowa in MlYnty v.Aruesll1i; 25 Iowa, 383,"theact must not receive a construction that will render its provisions absurd in effect, or cause it to work mariifest injustice and absolute dishonesty and crime." In the case of Becker v. Bettrm, 39 Iowa, 668, the parties were both residents of Iowa,and it was therein held that payments made for liquors sold to one who. was authorized to sell for legal purposes might be recovered back. The payments were made in Iowa, to one who was then subject to the laws ofthe state, and who knew that the laws of the state forbade his recehring such payments.' In case, however, the vendor does not live in the state, and the payments are not made in Iowa, should or should not a different rule apply? lithe money paid under such circumstances can be recovered back, it is equivalent to saying that it was the legal duty of the vendor living in Illinois, to refuse to receive in Illinois the money value of the liquors which he had delivered to the vendee living in Iowa, to be used and 'sold: for legal purposes, because the contract for sale could, not be enforced by reason of the fact that the vendor had not a permit authorizing him to sell. The want ola permit rendered the vendor legally incompetent to make a valid contract of sale, but he did not deliver the goods for the purpose of aiding the vendee in using and selling the same for any purpose fol'bidden by the law ofIowa, and he is not, therefore, open to the charge of attempting to introduce liquors into Iowa to be used'as a beverage, which use it is the sole purpose of the prohibitory law to prevent. He had delivered to the vendee liquors which had a legal and actual value in Iowa in the hands of the vendee, to be used for lawful purposes. The contract of sale he could not enforce in Iowa, but did the invalidity of the contract caused by the lack of a permit to sell on part of the vendor so far destroy his rights in the liquors that he might not afterwards lawfully receive payment therefor, voluntarily made in the state of Illinois? If he coUld lawfully receive payments"certainly the amount paid cannot be recovered back in an action brought by the payor. It seems to me that the proper construction of sectiou 1550 does not justify a right of recovery under such. circumstances, and that this section is intended to apply only to payments made for liquors sold to be used as a beverage. The latter view of the section, however, is not sustained under the; decision in Becker'v. Betten, and thequelY is whether the doctrine therein announced is to be extended to cover payments made beyond the boundaTies of the state to parties not subject to the laws of ·the state. This exact question arises upon the record in this case, because it is shown by the pleadings that the plaintiffs are citizens of Illinois, and chat the payments sougbt to be recovered back wele made to them, and .therefore presumably in Illinois. . Understanding that counsel purpose carrying the constitutional question presented by the demurrer to the answer to the court of final resort; it would seem best to have all the questions in the case decided at once, land to that end the demurrer to the counter-claim Will be sustained.
BECKER t7. HAYNES.
(GVrcuit Gowrt, D. Ma88aehuseU8. January 14,1887.)
U:flXEEPERS-LIABILITY-GOODS FOR SALE"7'BpECIAL DEPOSIT FOR KEEPlNG. .Pun. ST. M,Ass. CR. 102, 12. .' .
Under Pub. St. Mass. e.102, § 12, where there is no evidence tending to show that the loss resulted from the willful default or neglect of the innkeeper or his servalj.ts. the innkeeper is'Dot liable for the loss. of a trunk belongu)g to a commerCial traveler, and containing goods for sale, unless there was the' special agreement or deposit for safe-keeping contemplated by the statute; 9. WITNESS-IMPEACJlMENT-FAlLURE TO MAKE CoNSISTENT STATEMENT. The admissibility of testimony, for· the purpose of impeaching a witness, showing .his failure to make statements consistent with his testimony. is in the discretion of the trial judge, subject to the power of the court to grant a new trial, if it should appear on a review of the testimony that there was no ground. for the inference that the witness whose credibility was. in issue would have IUade the statements in question to the impeaching witnesses, if they had bElen true.
At Law. Ball, Storey &: Tawe:r, for plaintiff. Prentiss Cnmmings, for defendant.
CARPENTER,J. This is the plaintiff's motion for a new trial of an action at law brought against the defendant, who is an innkeeper, to cover damages for the loss of a package of merchandise. The statutes of Massachusetts exempt inllholders from liability for the loss of goods, whicpllre,not personal baggage and effects, unless such goods shall be delivered by the traveler to the.innholder for sak&-keeping. Pub. St. c. 102, § 12. rhe testimony showed, without contradiction, that one Weilli, the servant of the plaintiff, came to Boston by rail, having in his possession a trunk full of valuable goods of the plaintiff for sale; that he delivered the trunk to the agent of an express company to be transported to the defendant's inn, taking therefor a paper, check, oneceipt; that he proceeded to the defendant's inn, and registered his name, and was'assigned to a room, and delivered to the clerk the paper, check, or receipt, with the statement that it wasa check for his trunk which 'vollid shortly arrive; that the agent of the express company brought the trunk to the inn, and deposited it with others on the sidewalk in front of the inn, having first summoned the porter by ringing a bell; that this method of delivering the trunk at the inn was the method which was usually practiced in such cases, as was well known to the defendant; !ind· that. the trunk "Vas never brought into the inn, but was stolen from the sidewalk. Wemi testified that when he delivered the check to the clerk he told him that it was the check for a trunk containing valuable goods, and put the trunk under his care for safe-keeping, and that the clerk. accepted the trust. The clerk denied that the trunk was so inThe jury found a verdict for the defendant. presiding judge instructeq The first ground of the motion is thl,tt the jury that the plaintiff must prove a special agreement for the