Kizer v. Randleman, 50 N.C. 428, 5 Jones 428 (1858)

Aug. 1858 · Supreme Court of North Carolina

50 N.C. 428, 5 Jones 428

EPHRAIM KIZER v. HENRY RANDLEMAN.

Under the act of Assembly, forbidding a credit of more than ten dollars for liquors sold, (Rey. Code, ch. 79, sec. 4,) it was Iield that champagne wine is included.

This was an action of assumpsit, tried before Bailet, J., at the Spring Term, 1858, of Lincoln Superior Court.

The action was commenced by a warrant, for articles sold, and brought to the Superior Court by appeal. It was proved that the plaintiff' kept a grocery, and retailed spirituous liquors by the small measure, under a license from the county court. The bill exhibited against the defendant was for $39. It was proved that the defendant admitted that twenty-six dollars of the account was just, but he said that it contained a charge for nine bottles of champagne, whereas, he had got only six. It was in evidence, that the champagne was worth $15.

The Court instructed the jury, that the plaintiff had a right to recover whatever the champagne was worth,.and that if the other part of the account was for spirituous liquors, he could not recover for that, provided it amounted to $10 ; but if the other part was made up of groceries, other than spirituous liquors, and of spirituous liquors, and the spirituous liquors did not amount to $10, he had a right to recover the amount admitted by the defendant to be due, to wit, $26. Defendant excepted.

Yerdict for $26. Judgment. Appeal by the defendant.

Lander and Thompson, for the plaintiff.

Ilolee and Avery, for the defendant.

Battle, J.

The only question presented, in this case, is whether champagne wine is “liquor” within the meaning of the Revised Code, ch. 79, sec 4. That section enacts that “no keeper of an inn, tavern, or ordinary, or retailer of liquors by the small measure, shall sell to any person on a credit, liquors to a greater amount than ten dollars,” &c. The term “liquors” is certainly broad enough in its meaning to embrace champagne wine, and being thus embraced in the letter, we think it equally so in the spirit of the act. The object was to prevent tippling to an unreasonable extent, by preventing a credit for it, to an amount greater than ten dollars. Extravagant potations of wine may not be quite as injurious to health as the drinking of the same quantity of ardent spirits, but it may become equally fatal to the morals of those who are tempted to indulge in it.

An additional argument that vinous, as well as spirituous liquors, were intended to be embraced in this section of the act, may be derived from the fact, that in the 6th section “ spirituous liquors ” are particularly specified as those for the retailing of which a licence must be obtained from the county court. "Why use a more extensive term in the 4th section, unless other than spirituous liquors were intended ? Our opinion is that, upon a proper construction of this section, it embraces, both in letter and spirit, vinous, as well as spirituous liquors, and that, consequently, his Honor, in the Court below, erred in holding that champagne wine was not embraced in it. The judgment must be reversed, and a wnwe de novo awarded.

Pee Oubiam, Judgment reversed.