A sale of liquors, made by soliciting in this State an order therefor, which is then transmitted to New York for approval, and the liquor delivered there to a carrier, is a sale in New York. Sections 3078 and 3087 of the General Statutes, which prohibit the sale of liquors without a license, "by sample, by soliciting and procuring orders, or otherwise," do not apply to such a sale, so as to render it illegal as between the vendor and the vendee, though neither the vendor nor his solicitor had a license in this State. The case of State v. Ascher, 54 Conn. 299, which holds the solicitor of the order to be criminally liable under similar circumstances, should not be extended beyond the precise point necessarily involved. Nor is such sale affected by § 3114 of the General Statutes, which provides that "no action shall be maintained for the price of any intoxicating liquors sold anywhere with the intent to enable any person to violate any law of this State relating to the sale of intoxicating liquors," where it does not appear that the vendee was selling liquors in violation of law, nor that the vendor had any knowledge that the solicitor had no license in this State, and the solicitor is wholly independent of the vendee's direction and control, and is paid only by a commission on his approved orders. A merchant of another State, who sells goods there to residents of this State, is not bound to ascertain whether his purchaser has complied with the local license law.
HAMERSLEY, J.
The sale took place in New York. Section 3087 of the General Statutes does not attempt to change the law of contract in respect to sales of this character. In State v. Ascher, 54 Conn. 299, it was held that the language of this section should be construed as punishing any person not having a license to sell liquor, who, within this State, should procure orders for a sale of liquors, if the liquors so ordered were subsequently sold and came into the possession of the person ordering them, although the actual sale and delivery might take place in another State. The decision does not hold that the person making a sale in another State sells the goods in this State by procuring orders, or otherwise, in violation of our law, and its effect should not be extended beyond the precise point necessarily involved. New York Breweries Corp. v. Baker, 68 Conn. 337, 341.
The sale having been made in New York and being valid by the law of that State, it is valid in this State, and the plaintiff is entitled to maintain this action, unless the sale was made with an intent to enable some one to violate the laws of this State relative to the sale of intoxicating liquors. Fishel v. Bennett, 56 Conn. 40; Orcutt v. Nelson, 1 Gray, 536; Sachs Sons v. Garner, 111 Iowa 424; Abberger v. Marrim, 102 Mass. 70.
In this case the court does not find that such illegal intent existed, and it cannot be inferred from the facts found. If Burke had been an unlicensed person and Lum had known this fact, possibly such knowledge by Lum might be imputed to the plaintiff and furnish ground for holding that the sale was made to enable Burke to violate our laws. Fishel v. Bennett, 56 Conn. 40. The finding however, negatives such facts. It is claimed that, inasmuch as Lum committed an offense in procuring orders for the liquor without having a license to sell, the plaintiff, knowing that Lum had no license, in some way promoted or was a party to Lum's offense, and therefore cannot maintain this action. But it did not appear that the plaintiff knew that Lum was unlicensed. The offense of Lum was personal; the plaintiff was under no obligation to procure him a license, or to ascertain whether he had one or not.
A foreign merchant selling goods to residents of this State is not bound to ascertain whether his purchaser has legally complied with the local license law; nor is he bound, when employing a resident of this State to procure orders for the sale of his goods, under the circumstances detailed in the finding, to ascertain whether the person so employed has qualified himself to transact such business. There is nothing in the finding that supports the claim that the plaintiff sold its goods within this State; or sold them with any intent to violate the law of this State, or participated in any offense under the laws of this State. The plaintiff sues for the amount due on an executed sale and delivery made in New York, and is not obliged to trace its course of action through an illegal contract entered into by its agent within the scope of his authority, as was claimed by the defendant.
The conclusion we have reached renders it unnecessary to consider whether or not the provisions of §§ 3078 and 3087, relative to sales by sample or procuring orders, can be regarded as a regulation of interstate commerce within the principle discussed in Stoutenburg v. Hennick, 129 U.S. 141.