Mr. Justice Sterrett
delivered the opinion of the court, November 14th 1881.
One of the several defences, made in the court below, was grounded on the Act of 29th March 1860, which, inter alia, provides that “ in all actions for the sale of any spirituous, vin oits or malt liqnors, or any admixtures thereof, it shall be competent for the defendant, in every such ease, to prove that said liquors or admixtures thereof were impure, vitiated or adulterated ; and proof thereof being made, shall amount to a good and legal defence to the whole of the plaintiff’s demand : ” Purdon, 919 pi. 61.
Testimony was introduced by the defendant below, tending to prove that at least some of the liqnors purchased from the plaintiffs wTere of the character described in the act; and, in the two points, covered by the first and second assignments of error respectively, the court was requested to charge, 1st. “ That any impurity, vitiation or adulteration, to the least extent, would fall within the meaning of the law which prohibits a recovery for such liquors; therefore, if the jury find from the evidence that there was the least impurity, vitiation or adulteration, their verdict should be for the defendant.” 2d. “ That the term impure, means the introduction of any substance, foreign to and not essential in the manufacture of pure liquors. Therefore, if the jury find that the liquors sued for contained any impurity, the plaintiffs cannot recover.” The latter proposition was refused; and, in answer to the first, the learned judge instructed the jury that if they believed “ there was any impurity, vitiation or adulteration, which impaired the quality or value of any of the liquors in suit, to the least extent, the plaintiffs cannot recover for the liquors so impaired.” In view of the mischief intended to be remedied by the act, we think the construction given to it, in the foregoing answer, in connection with the general charge, is entirely proper. The act was not intended to prevent every admixture of liqnors, for by its very terms “ admixtures thereof ” are recognized. The penalty of the act is aimed at such impurity, vitiation or adulteration of liquors or admixtures thereof as impairs either their quality or value. This, of course, forbids the introduction of all poisonous or noxious ingredients, because these necessarily impair the quality, if not also the value of the liquor. The amount found by the jury, as compared with the plaintiffs’ demand, indicates that, under this branch of the defence, part of their claim was excluded by the jury.
Another ground of defence was, that the liquors were sold and delivered by plaintiffs to defendant in Westmoreland county, in violation of the local option law then in force in that county. On that subject the testimony was somewhat conflicting, and it was therefore a question of fact for the jury, whether the sale was consummated by delivery in Allegheny, or in Westmoreland county. That question was fairly submitted with proper instructions as to what constituted a sale ; and the jury were told that if they believed the liquors were sold in West moreland county, tlieir verdict should be for the defendant. In addition to the instructions thus given in the general charge, two of the plaintiffs’ propositions, complained of in the last two assignments, were affirmed. In each of these an important phase of the question, as suggested by the testimony, was clearly and correctly presented, and there was no error in affirming them. The verdict, rendered under the full and explicit instructions thus given in the general charge, and in answer to the plaintiffs’ eighth and ninth points above referred to, establishes the fact that the sale was made in Allegheny county, where the local option law was not in force.
The third assignment is not sustained. It was not enough for defendant to show that an agreement or contract to sell was made in Westmoreland county; Before he could claim that plaintiffs had forfeited their right to recover the price of their goods, in consequence of having sold them in W estmoreland county, contrary to law, it was incumbent on him to prove a sale consummated by delivery in that county — such a sale as would render them amenable to indictment there. As already observed, the. instructions on this subject were clear and adequate. The point, as presented, was rightly refused: Garbracht v. Commonwealth, 11 P. L. J. (N. S.) 220.
Eor the reason giveii by the learned judge, there was no error in refusing to affirm the point specified in the fourth assignment. It improperly assumed, as a conceded fact, that the liquors were delivered by the plaintiffs below in Westmoreland county. This they expressly denied, and it thus became one of the main questions of fact for the jury.
The fifth and sixth assignments are not sustained. The propositions recited therein, and which the court refused to affirm, are based on the testimony as to an understanding- between the parties, in pursuance of which the goods, purchased by defendant below, were marked “R. & B.,” and shipped to Westmoreland county, so that his name would not appear as consignee, &c. If the sale was actually made in Pittsburgh, neither the manner in which the goods were consigned to the purchaser, nor the purpose for which they were thus consigned, could possibly change the place of sale and delivery. Assuming it to be true that they were marked and shipped in the manner and for the purpose testified to by the defendant below, the plaintiffs, in so doing, violated no law. If they sold and delivered the liquors- to him at Pittsburgh, as the jury found, they had an undoubted right to mark and ship them to him in any manner he might direct. To hold that, by so doing, they knowingly aided him to evade or violate the liquor law, then in force in Westmoreland county, would be wholly unwarranted. Aside from the defence based on the act of 1860, the only question that could legitimately arise on the evidence in the case, was whether the sale was consummated by delivery in Allegheny, or in W estmoreland county. That question, as we have seen, was fairly submitted to the Jury, and found in favor of the plaintiffs below.
Judgment affirmed.
Chief Justice Shabswood dissented.