(76 N. H. 313) NEW ENGLAND BOX CO. v. PRENTISS & (Supreme Court of New Hampshire. Cheshire. should be determined against the New England Box Company." The court ordered that the original proceeding in which the bond was given be brought forward for the assessment of damages (75 N. H. 605, 75 Atl. 1. INJUNCTION (§ 252*)-BOND-MEASURE OF 984), that action being a bill in equity which DAMAGES. Complainants, having an option to purchase from defendants all the white pine plank on a certain lot at the market price when sawed, obtained an injunction, which was wrongfully issued, restraining defendants from selling to any other; whereupon defendants sold the plank to complainants for $18 a thousand without prejudice to their rights in the injunction suit. Held that, it being found that defendants, but for the injunction, could have sold the plank to others for $20 a thousand and that they were not bound by the option to sell to complainants, they were entitled to recover as damages because of the injunction $2 a thousand for the amount cut from the lot, the difference between what they received and what they otherwise could have sold the plank for. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 586-598; Dec. Dig. § 252.*] 2. SALES (§ 442*)-BREACH-DAMAGES. On breach of a valid contract to sell the white pine plank taken from a certain timber lot, the measure of the buyers' damages is not the difference between the price agreed and the price the sellers obtained, but the difference between the agreed price and the price the buyers were obliged to pay others to obtain the same material in the market. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1284-1301; Dec. Dig. § 442.*] 3. INJUNCTION (§ 239*)-WRONGFUL ISSUANCE -CONSTRUCTION-DAMAGES. was dismissed upon demurrer (75 N. H. 246, 72 Atl. 826). March 21, 1907, the plaintiffs and defendants entered into a written contract whereby the plaintiffs agreed to buy and the defendants to sell all the merchantable white pine plank on a lot in Rockingham, Vt., the time, rate, and place of delivery, the character of the lumber, the manner in which it should be sawed, the price, and the time of payment, being stipulated in the agreement. Subsequently to the execution of the contract and before January 1, 1908, the following clause, out of which the controversy has arisen, was inserted: "In consideration of the above contract, the said Prentiss & Wilder agree to contract the pine plank on the Richardson lot in Westmoreland at the market price when sawed to the said Box Company." January 6, 1908, the plaintiffs' secretary wrote the defendant Prentiss as follows: "Mr. Baker told me recently that you were going to cutting of the Richardson lot from which we were to have the box lumber. I would like to know whether you would like to enter into a contract now, or when the lumber is on sticks, or ready to ship. The understanding on this lot was that we were to have it at the market price; and as nothing was said as to whether it was the market price when the lot was cut or ready to ship, would like to know what your choice would be in the matter." Baker was the plaintiffs' superintendent and buyer. To this Complainants, having an option to purchase from defendants all the white pine plank on a certain lot, wrongfully secured an injunction restraining defendants from selling any "plank, lumber, or timber" described in the petition to any person except complainants. The petition described all the lumber and timber on the lot, and defendants construed the writ to enjoin them from selling any lumber or timber, including railroad ties, etc., in which com-letter Prentiss replied on January 8th as folplainants had no interest. Held, that defendants' belief that complainants were not entitled to the injunction in whole or in part did not authorize them to violate it in any particular; and hence defendants were entitled to recover on the bond whatever loss they sustained by being restrained from selling the ties and other material not covered by complainants' option. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 542, 543; Dec. Dig. § 239.*] Transferred from Superior Court, Cheshire County; Mitchell, Judge. lows: "In regard to the Richardson lot, would say we have out about 200,000 feet, and perhaps it would be well for you to take the matter up before long and come to some definite understanding in the matter. We will attend to this at your convenience." January 11th, the plaintiffs' secretary replied: "Your favor of the 8th received and in reply would say we have written Mr. Baker to see you soon." Shortly afterward Baker met the defendants on the lot, and they informed him that the price was $20 per thousand, that being the amount for which they could sell the lumber. Baker told them he would soon notify them whether the lumber would be accepted at that price. Suit by the New England Box Company against Prentiss & Wilder. On motion for the assessment of damages provided for by an injunction bond. Case transferred from Superior Court. Judgment for defendants on bond modified, and exceptions overruled. January 20, 1908, the plaintiffs brought The defendants brought an action of debt their bill in equity, setting forth the clause upon the bond which was conditioned "to of the contract hereinbefore quoted, alleging pay and satisfy all such damages as may be that 200,000 feet of plank were then sawed, occasioned to said Prentiss & Wilder by rea- that the plaintiffs were ready and willing to son of said injunction, in case said proceed- pay the market price, but that the defendings in which said injunction was issued ants demanded $20 per thousand, which the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes allowed $237 for loss caused by delay in its sale and expense of moving it. Other items of damage allowed made a total of $1,727.42. One of the defendants' witnesses, who qualified as an expert, testified that the market price of pine box plank in January, 1908, was $20 per thousand. It being claimed by the defendants that the original injunction prevented the removal of railroad ties from the Richardson lot and that they suffered damage from the delay, another witness was permitted to testify as to the price of ties in 1908, prior to the granting of the injunc tion and after its modification. The testimony of both witnesses was received subject to the plaintiffs' exception. The plaintiffs also excepted to the denial of their motion for judgment, to each special finding, and to the denial of their motion for judgment upon each item of the defendants' claim. plaintiffs claimed to be in excess of the mar- | so interpreting the injunction, they should be ket price, and praying for an injunction to restrain the defendants from selling the pine plank or any of the lumber or timber on said Richardson lot to any person except the plaintiffs; and on that day an injunction was issued restraining the defendants "from selling, conveying, delivering, or otherwise disposing of any of the plank, lumber, or timber described in said petition to any person except the plaintiffs." The defendants understood and were advised by counsel that this injunction restrained them from disposing of any timber upon the Richardson lot. July 24, 1908, the injunction was modified so as to permit the defendants to dispose of all lumber and timber, the sale of which had been previously enjoined, except such as would naturally and properly be sawed into pine plank in the operation of the lot. As a result of the interpretation put upon the injunction by the defendants and their counsel, they did not remove any of the timber until after the modification of the injunction. While the injunction was pending, by agreement and without prejudice to the rights involved, the plaintiffs received all the pine plank sawed on the lot (544,310 feet) and paid therefor $18 per thousand. The court ruled that the clause inserted in the contract of March 21, 1907, was an option to purchase the pine plank on the Richardson lot at the market price, and found that the plaintiffs elected to exercise this option before filing the bill in equity, that in January, 1908, the market price in the vicinity of Westmoreland for timber of this kind and quality for future delivery was $20 per thousand feet, and that the defendants could have sold the timber at that price. Although the defendants could have sold the timber in question at that price, the plaintiffs about that time purchased in Massachusetts and in some other towns in New Hampshire sev eral million feet of similar timber for $18 per thousand. The market price for such plank in Westmoreland continued at $20 per thousand until about September 1, 1908; but, of the plank cut on the Richardson lot, 181,436 feet were actually sawed after September 1st, when the market price was about $18 per thousand. The court found the defendants entitled to damages under the bond to $2 per thousand on 544,310 feet ($1,088.62), with the proviso that if the market price contemplated by the contract was the market price when the plank was actually sawed, instead of the time when the plaintiffs exercised the option to purchase, there should be deducted from this sum of $1,088.62 the sum of $362.87 on account of 181,436 feet sawed after September 1, when the market price was only $18 per thousand; and that if the defendants were, as matter of law, restrained by the injunction as first issued from taking from the lot the timber thereon Archibald D. Flower and Cain & Benton, for plaintiffs. John E. Allen and Charles H. Hersey, for defendants. PARSONS, C. J. [1] The plaintiffs secured an injunction which prevented the defendants from selling certain pine plank to any one other than the plaintiffs. Not being permitted to sell to any other, the defendants sold the plank to the plaintiffs for $18 per thousand, with the agreement, however, that such sale should not prejudice their rights in this proceeding. If the plaintiffs paid the defendants as much as they could have obtained from others, although the injunction was improvidently issued, the defendants' damages would be merely nominal. But it is found that but for the injunction the defendants could have sold the plank to others for $2 per thousand more than the plaintiffs paid; and, as upon the evidence it could have been found that they would have made such sale except for the injunction, the finding that they have been damaged by the issuance of the injunction $2 per thousand upon 544,310 feet, the amount cut on the lot, all of which the plaintiffs received, presents no error of law. In the present proceeding, the contract alleged by the plaintiffs as the foundation of the proceedings which have been decided against them is immaterial. The measure of damages is not the difference between what the defendants did receive and what they would have received of the plaintiffs under the contract, but the difference between what they did obtain and what they could have received but for the injunction. It has been decided in this case that the defendants could not be compelled to sell the plank to the plaintiffs. New England Box Co. v. Prentiss, 75 N. H. 246, 72 Atl. 826. By that decision all parties to the present proceeding are bound. Towle v. Towle, 46 N. H. 431. As the defendants the plaintiffs, the sum they would have | fendants that the injunction was broader been obliged to accept for it, if compelled than the plaintiffs could properly ask for, to so sell it, can have no bearing on the as probably they advised them that upon question of the damages occasioned by the the facts the injunction could not be mainwrongful prevention of such sale to others. tained at all. But the belief of the defendAs the defendants had the right to sell to ants or their counsel that the plaintiffs others, they had the right to such price as were not entitled to the injunction, in whole they could obtain from them. The founda- or in part, did not authorize them to violate tion of this proceeding is the wrong in it in any particular. They may not have granting the injunction. That wrong could understood why the plaintiffs thought it not be cured by the trial and conclusion in necessary to prohibit the removal of any favor of the plaintiffs of the question al- lumber from the lot; but, whatever specu. ready conclusively determined against them. | lations they may have had on this point, The decision upon demurrer (75 N. H. 246, 72 Atl. 826) left open the question whether the plaintiffs could recover damages of the defendants for the breach of an agreement to contract the plank to the plaintiffs. If upon appropriate pleadings the defendants could have recouped such damages in this proceeding, no attempt has been made to do so or to show any damages. they were certainly justified in yielding implicit obedience to the order of the court, and are entitled to recover the loss thereby sustained. The exceptions to evidence do not require consideration. The damages should be increased by the sum of $237. Exceptions overruled. All concurred. STATE V. GROSS. Feb. 6, 1912.) (76 N. H. 304) 1. INTOXICATING LIQUORS (§ 236*)-WrongFUL "SALE"-PLACE OF SALE. Pub. St. 1901, c. 112, § 15, provides that if any person, not being an agent of a town to sell spirits, shall sell any spirituous liquor he shall be fined. The sale of liquor having been prohibited in L., defendant maintained an office, in charge of his brother as agent, where he pretended to take orders for a Boston liquor house for the sale of liquor, to be The proseshipped from Boston by express. defendant's brother that he wanted to buy two cuting witness went to the office, stated to quarts of whisky, paid the price, and was told that he could get the whisky at the express office in L. the next day. He went to the express office the succeeding day, paid the express charges, and received the liquor. Held, to show a "sale" of liquor in L., in violation of the statute, and not a transaction in inter [2] Assuming that the defendants, instead of performing a valid contract to sell to the plaintiffs, had sold to others at a higher (Supreme Court of New Hampshire. Belknap. price, the measure of the plaintiffs' damages would not be the difference between the price agreed and the price the defendants obtained, but the difference between the agreed price and the price the plaintiffs might be obliged to pay others to obtain the same material. Ordinarily this would be the difference between the agreed price and the market price; and as the agreed price was the market price, if there is a market where the price was established in which such material could be obtained it would seem, as already suggested, that the plaintiffs could supply their wants in the market (75 N. H. 246, 72 Atl. 826), and the only ground of damages would be the possible disturbance of their business by delay. But the plaintiffs have had the plank, and claim they could buy and were buying from others at $18-the price they were willing to pay the defendants. There seems no ground upon which damages could be claimed under the circumstances disclosed. state commerce. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.* For other definitions, see Words and Phrases, vol. 7, pp. 6291-6306; vol. 8, p. 7793.] 2. INTOXICATING LIQUORS (§ 169*)—WrongFUL SALE-LIABILITY OF AGENT OR SERVANT. Under Pub. St. 1901, c. 112, § 15, prohibiting any person, not an agent of the town to sell spirits, from selling spirituous liquor in any quantity, a servant or agent may be guilty of unlawfully selling liquor, the property of his principal, though the agent have no property in the liquor so sold. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 187, 188; Dec. Dig. 169.*] [3] The defendants were enjoined from selling "any of the plank, lumber, or timber described in said petition to any person." | In the petition the plaintiffs asked for an injunction restraining the defendants from selling the pine plank "or any of the lumber or timber on said Richardson lot to any person." Naturally, the defendants understood that the injunction, by reference to the petition which mentioned all the lumber and timber on the Richardson lot as the matter to which the injunction should relate, restrained the defendants from selling any of the lumber or timber on the lot. Such is the plain import of the language. [Ed. Note.-For other cases, see Intoxicating Doubtless with their knowledge of the sit-Liquors, Cent. Dig. §§ 182, 183; Dec. Dig. § uation, counsel may have advised the de- 167.*] 3. INTOXICATING LIQUORS (§ 167*)-MISDEMEANORS-PRINCIPALS. Wrongful sale of intoxicating liquor being a misdemeanor, all who participated therein with knowledge would be separately liable as principals in the offense. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes 4. INTOXICATING LIQUORS (§ 233*)-WRONG- I would give him a certain brand. FUL SALE EVIDENCE. Where, in a prosecution for wrongful sale of liquor, defendant claimed that he acted only as agent for a Boston firm, and that the sale an interstate transaction, evidence that defendant collected empty beer cases, containing beer when delivered, on orders taken by him, was relevant to show defendant's method was of business. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 2982; Dec. Dig. § 233.*] Bingham, J., dissenting. Lyford paid the price asked, and was told that he could get the whisky at the express office in Laconia the next day. These facts show an offer to buy, an acceptance of the offer, payment of the price, and a delivery to the purchaser in this state, and authorize, if they do not require, a verdict of guilty. No question has been raised because the transaction was entirely with the defendant's agent. The fact found, that, as a general thing, the business the defendant carried on at his Exceptions from Superior Court, Belknap office was transacted as in this case authorCounty; Plummer, Judge. Edmund C. Gross was convicted of an illegal sale of whisky, and he brings exceptions. Exceptions overruled. Frank P. Tilton, Sol., for the State. Owen & Veazey and Arthur A. Tyler, for defend ant. izes the inference that in this case the acts of the agent were authorized or ratified by him and were his acts. State v. Roberts, 55 N. H. 483; State v. Colby, 55 N. H. 72; State v. Bonney, 39 N. H. 206; State v. Foster, 23 N. H. 348, 353, 55 Am. Dec. 191. * * * [2] The specific finding relied upon to upset the verdict is that Gross, the defendPARSONS, C. J. [1] The information ant, did not have any property in the whischarges the unlawful sale of two quarts of ky delivered to Lyford. But that fact is whisky to one Lyford, at Laconia, Decem- immaterial. "A servant or agent is liable, ber 10, 1910. By agreement, the case was under the statute, for unlawfully selling tried by the presiding judge, who found a spirituous liquor, the property of his prinverdict of guilty. The sale charged was cipal." State v. McGuire, 64 N. H. 529, 15 probibited by section 15, c. 112, Public Stat- Atl. 213. "Here is no question upon the utes: "If any person, not being an agent of contract of sale. It is the act of selling a town for the purpose of selling spirit, that causes the mischief against which the shall sell * * any spirituous liquor, statute is aimed, and which the statute punin any quantity, he shall be fined," etc. The ishes as a crime. Every sale by exception to the general verdict, which is an agent, regarded as a contract, is the sale not expressly stated to be based upon the of the principal, and not of the agent; but special facts found, raises merely the ques- to hold that an agent who sells liquors withtion whether any of these findings are, as out license, by general instructions from his matter of law, so inconsistent with the gen- principal, is not liable under the statute as eral finding of guilty that that finding can- the seller would go far to defeat the object not stand. If, however, the case was in- of the law. The criminal act might be comtended to mean that the general verdict was mitted, and the mischief accomplished by based upon the special facts stated, the ad- the agent in this state, while the principal ditional question would be presented wheth-resided in another jurisdiction, quite beer the inference of guilt could reasonably yond the reach of punishment. The act of be drawn from these facts. Kidd v. Trust. selling, we think, constitutes the statutory Co., 75 N. H. 154, 155, 157, 71 Atl. 878; offense. It is made a crime to sell without Kidd v. Traction Co., 74 N. H. 160, 176, 177, license, and whoever actually makes the 66 Atl. 127; Dusseault v. Association, 74 N. sale, though acting as agent for another, is H. 407, 68 Atl. 461; Jaques v. Chandler, 73 guilty of the offense." Perley, C. J., in N. H. 376, 62 Atl. 713; Allen v. Association, State v. Haines, 35 N. H. 207-209. "It ap72 N. H. 525, 57 Atl. 922; Concord Coal Co. pears to us that one who offers an article v. Ferrin, 71 N. H. 331, 51 Atl. 283, 93 Am. for sale, either upon the application of the St. Rep. 496; Noyes v. Patrick, 58 N. H. purchaser or otherwise, and who, when the 618. offer is accepted, delivers the article in pursuance of the offer, does 'sell' or make a sale, according to the ordinary sense and meaning of that term. It would seem strange and contradictory to maintain that one who sells goods on commission, or as the factor, agent, or salesman of another, does not sell them. The argument assumes that a sale must be construed to be a contract, by which the owner of property alienates it and transfers the title to another. But this is a very limited view of the subject. It is no less a sale, and even a valid sale, when made by the authority of the Taking the view most favorable to the defendant, were there facts in evidence from which the inference that Gross sold Lyford spirituous liquor in Laconia, as alleged, could be drawn? The account of the transaction is that Lyford went to the defendant's office in Laconia for the purpose of buying whisky; that he told the person in charge (Otto A. Gross, who was the defendant's brother and agent) that he wanted to buy two quarts of whisky. He was asked what kind of whisky he wanted, and he replied, "Good whisky." Gross then said he owner. The statute prohibits all sales by unlicensed persons, as well sales de facto as sales by an owner." Shaw, C. J., in Commonwealth V. Hadley, 11 Metc. (Mass.) 66, 68. not understand he had authorized Gross to order whisky shipped to him. [3] In view of these facts, it is clear it was not found that Lyford, through Gross, purchased the whisky in Boston, or that the title passed to Lyford when the goods were delivered to the express company. The sale was not in Boston, but in New Hampshire; and the title passed in Laconia, when the goods were delivered to Lyford at the place where he was directed to apply for them. State v. Leary, 75 N. H. 459, 461, 76 Atl. 192; Suit v. Woodhall, 113 Mass. 391. This delivery was that provided for in the contract of sale, and resulted from the transmission of the order to the Boston firm. Upon these facts, it could be found that the delivery in New Hampshire was the act of the defendant equally as if, after the contract of sale was made, some other employé of his had completed the transaction by handing the whisky to Lyford. In such case, the transaction being a misdemeanor, all participating therein with knowledge (the defendant himself, his brother who made the sale, and the employé who delivered the goods) would be separately liable as principals in the offense. State v. Nowell, 60 N. H. 199; State v. Felch, 58 N. H. 1. If the title did not pass to "Dear Sir: Kindly send the following or- Gross upon the delivery to the express comder by Am. Express for which please find en-pany, it remained in the Boston owners; and closed $ It is further objected that the defendant did not have possession of the whisky, and did not deliver the whisky from the place of sale. Briefly, the course of business was as follows: The defendant was engaged in the liquor business, as a licensed dealer, when such business was permissible in Laconia and Ashland. After these places voted against licensing the sale of liquor, he entered into an arrangement to sell liquors for a firm in Boston, who gave him a writing, saying: "We take pleasure in introducing Mr. E. C. Gross, who is now selling goods for us in New Hampshire. Any order you may entrust to his care will be promptly executed by "Since receiving the above, the defendant has occupied the premises in Laconia formerly used by him as a licensed dealer for the sale of liquors, and has been engaged in taking orders for spirituous and malt liquors. The case contains the form of an order blank, addressed to E. C. Gross, agent, Laconia, in the following terms: Items for payment of same. Price "Yours truly. "Important: Cash must accompany order. All orders are received subject to the acceptance of the shipping firms in Boston, Mass." The defendant's agent with whom Lyford dealt, after payment by Lyford, wrote on such a blank the brand and quality of whisky agreed upon and "Name, John Lyford, call for, Laconia, N. H.," and sent the same to the Boston firm, who filled the order at their place of business in Boston, and shipped the whisky by American Express, addressed to Lyford at Laconia. Lyford called at the express office as directed by Gross, and the whisky was delivered to him; he paying the express charges. the delivery by the express company as their agents, in completion of a contract of sale made here, was in violation of the laws of this state. Whether the Boston owners or the express company acted with such knowledge as would make them participants in the offense or not, Gross, knowingly taking part in a sale of liquor contrary to the law of the state, is liable, upon the authorities above cited, as principal to the same extent as if he had personally conducted the entire transaction. Whether the agency scheme for the sale of liquor indicated by the facts found, but which the case finds is not generally followed, is a violation of chapter 112, Public Statutes, or its amendments, is not now before the court. If it were, it might be important If the course of business indicated by this to ascertain whether the agency was real or blank had been carried out, a different ques- formal. Whatever the relation, however, betion would be presented. If it were found, tween Gross and the Boston firm, upon the or the evidence conclusively proved, that Ly- facts found, as between Gross and Lyford, ford merely employed Gross to transmit an Gross was the vendor. The contract of sale order for him to a firm in Boston, directing was made in New Hampshire, payment was them to deliver spirituous liquor to a com-made, and the sale was completed by delivmon carrier in Boston for transportation to ery here. The transaction was intrastate, him in Laconia, the inquiry would necessarily take a different course. But nothing of that sort was done. Lyford was not requested to sign a blank of any kind or description; the matter of the defendant's agency was not mentioned. Lyford has heard that the defendant was the agent of a concern for the purpose of taking orders for liquor; but from what took place at the time he understood he purchased whisky of Gross, and did and not interstate. The fact that Lyford paid the express charges did not convert the transaction into a sale in Massachusetts. That was a mere incident of the intrastate contract of sale. Banker Bros. v. Pennsylvania, 222 U. S. 210, 32 Sup. Ct. 38, 56 L. Ed. [4] The evidence objected to, that the defendant collected empty beer cases, delivered, containing beer, upon orders taken by |