Prince Albert 1930s

Folkestone Express 28-11-1936

Local News

On Tuesday at the Folkestone Police Court three summonses were heard for selling retail beer without a licence on the premises of the Savoy Restaurant, Rendezvous Street, on September 21^st. The defendants were Flessati Ltd., Antonio Guiseppi Flessati, their manager, and Peter Chiesa, a waiter in the employ of the defendants.

The Magistrates were Dr. W.W. Nuttall and Mr. R.J. Stokes.

Mr Rutley Mowll defended, and pleaded Not Guilty on behalf of the three defendants.

Mr. D. Willson, prosecuting on behalf of the Commissioners of Customs and! Excise, said there was one summons against each of the three defendants for having sold beer retail without a licence at the cafe. The summons was under the Finance Act, 1910, which required a licence to be held to enable beer to be sold and the penalty was £50. He handed in a certificate of registration of the company. On September 21^st at about 1.30 p.m. two officers of the special enquiry staff went into the restaurant. They ordered lunch and Mr. Green ordered two light ales and the waiter, Chiesa, asked for the money and was handed 2/- and ten minutes later he returned with the two bottles of light ale. He handed the officer 11d. change. They consumed the beer and the lunch, paid the bill and left. The charge for the beer was 1/1 or 6½d. each. Although the beer was brought to the table in bottles, the bottle were removed before the bill was paid. During the time the two officers were the restaurant, two other officers keeping observation outside the premises. They saw the waiter leave the cafe and go to the public house, the Prince Albert, and pay 1/1 for the light ale. The two officers went into the restaurant in the evening and ordered dinner. They ordered two bottles of ale and paid the waiter 2/-. He was observed by two officers outside to fetch the beer from the Prince Albert. On that occasion the beers were only 1/0½  instead of 1/1. On this occasion the waiter went to the public house with some money also five empty bottles and the barman rang up 2½d. on the till. In the first case they paid 6½d. for the beer and in the second 6¼d. It had been ascertained from the licensee that the actual charge for the beer was 4½d. a bottle. The waiter charged customers 6½d. and received 2d. on the bottle which was, he submitted, the profit on the beer. He further submitted that the owners and manager of the restaurant were responsible for the actions of the waiter. When he was seen by the Customs officers, the defendant Flessati made a statement, as follows: “My instructions to all my waiters are that when cus­tomers order beers, the waiter is to ask for the money and go out and execute the order. They generally go to the Prince Albert in Rendezvous Street. I have no stocks of beer on my pre­mises. If any profit has been made in this restaurant by the sale of beer I have no knowledge of it, and have never consented to or benefited by it. I have been associated with this business for 30 years and it has always been my endeavour to comply with the law”.

The waiter Chiesa, also made a state­ment. He said “I have been employed by Mr. Flessati for the past four months. When I first came here Mr. Flessati told me that when customers ordered beer I was to take the money, charging the customer the price of the beer, and go out to buy it for him. I usually go to the Prince Albert. I charge the cus­tomer the price of the beer and the bottle. If a customer asks for a light ale I charge him 6½d, 4½d. for the beer and 2d. for the bottle. If the customer were to ask for the 2d. for the bottle, I should let him have it, but no customer has done this so far. Later I take back the bottles and ob­tain the refund (2d.), which I keep my­self. I have never passed on any such refund to Mr. Flessati. I remember the two men coming in lunch time yesterday and again for dinner yesterday evening. At lunch they ordered two light ales and at dinner they ordered the same. On each occasion I asked them for the money first and they gave me half-a-crown or two shillings. I went to the Prince Albert on each occasion and purchased two light ales, which I paid for in the public bar with the customers’ money. At lunch time I paid 1/1 for the two light ales and the bottles and this is what I charged the customers for the beer. At dinner time I took some empty bottles to the public house when I went for the light ales. I cannot remember number of bottles I handed in or how much money I paid, but I know I charged the customers the price of the beer and the bottles. They did not ask for the money for the bottles or take them away”.

The proprietors were responsible if there was a profit being made on the beer and being retained by the waiter. In that case they bad a waiter going, in the course of his employment, to fetch the beer from a neighbouring public house. He had been told that he was not to make any profit on the beer and he was, if necessary, to hand the deposit on the bottles to the customers. Despite those instructions he retained, what he maintained, was the profit on the beer himself.

Mr. William Gordon Green, officer of the special enquiry staff of the Customs and Excise, said on September 21^st at 1.30 p.m. he went to the cafe with Mr. Pescard and ordered lunch and two light ales. The waiter said he wanted the money first, and he handed him a two shilling piece. At 1.45 the waiter returned with two bottles of Jumbo light ale and handed him 11d. change. He poured out the beer and took the bottles away. On that occasion they paid 6½d. each for the bottles of beer. They went to the restaurant again in the evening and ordered a meal, and Mr. Pescard ordered two bottles of Jumbo light ale and were served by the same waiter at 6.40 p.m. He handed Mr. Pescard 11½d. change from 2/-. The charge had been 6¼d. a bottle. The beer was poured out and the bottles removed immediately. 

Cross-examined witness said on the first occasion he received the right change, but on the second occasion there was a difference of a halfpenny. If he bought a bottle of beer and drove out into the country to drink it with a meal he would have thrown the bottle away.

Mr. Mowll : You did not ask the waiter for the bottle, you allowed the waiter to take it away?

Witness : Yes.

You could have taken that bottle away yourself if you had liked? - If I was not a sane man I could.

Did you say to the waiter “Where is my change?” - No.

You did not ask the waiter to go and take the bottle back and get 2d. on it?  - No.

Mr. Willson: Did you know that a deposit had been paid on it?

Witness : No.

Did you see a slip on the bottle marking the price on the bottle? - No.

You never got near enough to the bottle? - No.

Did the waiter ever offer you the bottle? – No.

John Pescard, and officer of the Customs and Excise special enquiry staff, corroborated the evidence of the previous witness.

Mr. Mowll: Did you ask for the bottle?

Witness: No.

Or for any deposit that may have been paid on the bottle? – I had no idea a deposit had been paid on the bottle.

Nothing was said about bottles? – No, I don`t think so.

Mr. Graham Charles E. Reide, officer of the special enquiry staff, said he, with Mr. Binks, kept observation outside the premises. At 1.40 p.m. he saw a waiter come out of the restaurant and go into the public bar of the Prince Albert. He followed him and the bar­man handed him two bottles of Jumbo light ale. He handed the barman a silver coin and he rang up 1/1. In the evening he saw the waiter come out of the restaurant carrying five empty half-pint bottles. He went into the same bar and said to the barman “Two light ales”, putting the empty bottles down on the counter.  The bar­man pointed to the bottles and said “How many?” The waiter replied "Five”. The barman then rang up 2½d.on the cash register and gave the waiter his change and two half-pint bottles of Jumbo ale. The next day they saw the defendant Flessati at the Savoy Restaurant and told him who they were. They cautioned him and he said he would like to make a statement. They saw the waiter Chiesa, he was cautioned and made a statement.

In reply to Mr. Mowll, witness said looked at the front of the restaurant, but found no stock of beer or price list

Mr. Leonard Barker, licensee of the Prince Albert public house, said previous to the time he was interviewed by the officers, waiters from Flessati’s Ltd. came to his public house for beer. When bottled beer was sold to the waiters twopence was charged on the bottle and refunded when the bottle was returned. There was no mark or stamp to say what deposit had been paid on the bottle.

Cross-examined, witness said Mr. Flessati had asked him before the case arose whether he could let him have the beer without paying a deposit on the bottles. He had asked him again since.

Mr. Mowll asked what was the offence for which his clients were charged? It was alleged against them that they sold beer - that they sold beer at an un­licensed place and if they sold beer at that place they had committed an offence, because the restaurant was only licensed for the sale of wine. He had to suggest that the evidence was quite cIear that every conceivable step was taken to make the sale of beer, not in the restaurant but at the public-house authorised to sell beer. The money was paid in advance and the messenger was sent with the money. The whole of the allegation of the prosecution was that by a fiction of law if the publican charged twopence on the bottle, that twopence, in some way or the other, became the profit on the beer. He challenged his friend to produce any High Court decision to that effect. No such thing had ever been decided that, the mere question of the bottle and deposit which was paid on it trans­ferred the sale from the public house to the restaurant. His friend might be quite right in saying that if the waiter was committing an offence he was com­mitting it on behalf of his master, even if his master did not know anything about it. There was no evidence there that there was any sale of beer at the restaurant. That was the whole of his defence and it was a complete answer. The most that was suggested was that the amount that was paid for the bottle was taken by the waiter himself and to that extent the waiter gained an advantage out of the transaction. He had put it to one of the witnesses that if he had bought the beer from the public-house and drunk it in the coun­try what he would have done with the bottle and he said “Throw it away”. Mr. Willson said it was a well-known principle of the law relating to agency that if the agent made any selling profit or gain out of the transaction the status of principal and agent was destroyed at once. In both of those cases a selling profit was made, therefore at no time during those transactions was the waiter the agent of the officers. He either be­came a principal himself or acted as agent for his employer. There were two sales - one from the licensee to the waiter on licensed premises and the further sale at unlicensed premises from the waiter himself or his employer to the officers.

The magistrates retired and on their return the Chairman said they found that there was a sale of beer at the restaurant. The waiter would be fined £2, Mr. Flessati £3 and £3 3/- costs, and the summons against the company would be dismissed.

Mr. Mowll asked if the magistrates would state a case and the Chairman intimated that they would be agreeable to do so.

Folkestone Herald 28-11-1936

Local News

A submission that a sale of beer does not take place on the premises when a diner at a restaurant orders a drink with his meal was unsuccessfully made by the defence at the Folkestone Police Court on Tues­day, when three summonses for selling by retail beer without a licence were heard by Dr. W. W. Nuttall (presid­ing) and Mr. R. J. Stokes.

Flessati Ltd., Savoy Cafe, Rendez­vous Street, Folkestone, were sum­moned for selling , by retail beer cn September 21^st last, and there were similar summonses against Guiseppe Antonio Flessati, a managing director and manager of the cafe, and Peter Chiesa, 9, Stevens Street, Tottenham Court Road, London, a waiter.

Mr. D. J. Willson prosecuted for H.M. Customs and Excise, and defend­ants were represented by Mr. Rutley Mowll, of Messrs. Mowll and Mowll, Dover, who entered pleas of not guilty

.

Mr. Willson said in this case there was one summons against each defendant for having sold beer with­out a licence on September 21^st at the Savoy Cafe, Rendezvous Street, Folkestone.

On September 21^st at about 1.30 p.m. two officers of the special enquiry branch of the Customs went to the restaurant, and Mr. Green, one of them, ordered two light ales. Chiesa asked for the money and was handed 2s. About ten minutes later Chiesa returned with two bottles of light ale, and at the same time he handed over 11d. change. The charge for the beer was 1s. 1d., 6½d. each bottle. Mr. Willson said the beer was brought to the table in bottles, poured out and the bottles removed before the officers left. Two other officers saw the waiter leave the cafe and go to the Prince Albert public house and ask for two light ales. He there paid 1s. 1d. for the ale and returned to the cafe with the two bottles and change. The same thing happened in the evening. The two officers ordered dinner and two bottles of light ale. They paid the waiter 2s.; he went to the Prince Albert public house, and on that occasion was only charged 1s 0½d. for the beer, instead of 1s. 1d. On that occasion also two other officers saw the waiter go to the public house with some money and also five empty bottles, which he handed in, and the barman rang up on the cash register 2½d., 2d. each being allowed on the five empty bottles, making 1s. 0½d. for the beer. He thought that might have been a mistake on the part of the barman and that he should have rung up 3d. In the first case the officers paid 6½d. each, and on this occasion 6¼d. Mr. Willson said it was subsequently ascertained from the licensee that the charge for this beer was 4 ½ d.. a bottle, and the suggestion of the prosecution was that the waiter, if not the pro­prietor, was making a profit of 2d. on each bottle of beer he served. That 2d. which had been obtained by the waiter in that way was in fact a profit on the sale of the beer.

Mr. Willson, after submitting that the position as regards the waiter was clear, he having obtained the beer and made a profit of 2d. on each bottle, said in regard to the question of the responsibility of the owner and manager of the cafe for the acts of a servant, there were a number of cases decided on that point.

Mr. Willson said statements were made by both Flessati and Chiesa when seen by Customs officers. Mr. Flessati said: My instructions to all my waiters are that when customers order beer, the waiter is to ask for the money and go out and execute the order. They generally go to the Prince Albert in Rendezvous Street. I have no stocks of beer on my premises. If any profit has been made in this restaurant by the sale cf beer I have no knowledge of it, and have never consented to nor bene­fited by it. I have been asso­ciated with this business for 30 years, and it has always been my endeavour to comply with the law.

Chiesa also made a statement, in which he said: I have been employed by Mr. Flessati for the past four months. When I first came here Mr. Flessati told me that when customers ordered beer I was to take the money, charg­ing the customer the price of the beer, and go out to buy it for him. I usually go to the Prince Albert. I charge the customer the price of the beer and the bottle. If a customer asks for a light ale I charge him 6½d.; 4½d. for the beer and 2d. for the bottle. If the customer were to ask for the 2d. for the bottle, I should let him have it, but no customer has done this so far. Later I take back the bottles and obtain the refund, (2d.), which I keep myself. I have never passed on any such refund to Mr. Flessati. I remember the two men coming in at lunch time yesterday and again for dinner yesterday evening. At lunch they ordered two light ales, and at dinner they ordered the same. On each occasion I asked them I for the money first, and they gave me half-a-crown or two shillings. I went to the Prince Albert on each occasion and purchased two light ales, which I paid for in the public bar with the customers’ money. At lunch time I paid 1s. 1d. for I the two light ales and the bottles, and this is what I charged the customers for the beer. At dinner time I took some empty bottles to the public house when I went for the light ales. I cannot remember the number of bottles I

handed in or how much money I paid, but I know I charged the customers the price of the beer and the bottles. They did not ask for the money for the bottles nor take them away.

Mr. Willson submitted that the pro­prietors of the cafe were responsible for what he contended was a profit which was being made on this beer. He understood the waiter had been told not to make any profit on the beer and to hand the deposit on the bottles to the customers; but he was maintaining that the waiter had made a profit and he had so rendered his employer liable to conviction.

William G. Green, an officer of the Special Enquiry Staff of H.M. Cus­toms, said on September 21^st, about 1.35 p.m., with Mr. Pascard, another officer, he went to the Savoy Cafe. Rendezvous Street. He ordered lunch and asked the waiter if he could have two light ales. The waiter replied “Certainly, but I should like the money first.” He handed the waiter a 2s. piece, and at 1.45 p.m. the waiter returned with two bottles of Jumbo light ale. The waiter handed him 11d. change, poured the beer into two glasses, and took the bottles away. Witness and the other officer after­wards left the premises. The same evening at 6.25, with Mr. Pascard, he again entered the restaurant and ordered a meal. At 6.30 Mr. Pascard asked for two bottles of Jumbo light ale, which were again served by the waiter. At 6.40 p.m. the waiter returned with the ale and handed Mr. Pascard 11½d. change out of 2s. The beer was poured out and the bottles immedi­ately removed. The charge was then 6¼d. a bottle each. The waiter was the defendant Chiesa.

Replying to Mr. Mowll, witness said on the first occasion he was handed the exact change which had been re­ceived by the waiter from the publican.

Mr. Mowll: Suppose you had been in a motor car and you did not want to get out, but you wanted a bottle of beer to consume on your journey. If you sent a messenger into a public house to buy a bottle of beer, what do you expect the publican to charge you?

Witness: The normal price which anyone going into a public house would have to pay.

Mr. Mowll: No, what anyone would be charged for a bottle of beer. What would you do with the bottle? - I should probably dispose of it in the nearest rubbish bin.

Mr. Mowll: It would be your bottle; you have sent out for it and paid the full price for the ale in the bottle. Was not this your bottle when you sent Chiesa to buy it for you?

Witness:            The bottle was taken away from the table.

Mr. Mowll: No, you did not ask for it. You could have taken the bottle away with you. Did you say “Where is my bottle?” - No.

Mr. Willson: Did you know a deposit had been charged on the bottle?

Witness: I had not the slightest idea.

Mr. Mowll: I understand there was a slip on the bottle marking the charge made for the bottle.

Mr. Willson (to witness): Did you see the slip? - No.

Mr. Willson: You never had a chance to get near enough to the bottle to see it? - No.

John Pascard, an officer of Customs and Excise, corroborated the last, witness.

Mr. Mowll: You asked for two bottles of Jumbo light ale? - Yes.

Did you ask for the bottle or any deposit paid on it? - No, I had no idea any deposit had been paid on the bottle.

John Reide, another officer of the Customs Special Enquiry staff, said he kept observation outside the premises with Mr. Banks, another officer. During the lunch Chiesa came out of the restaurant and went into the public bar of the Prince Albert Hotel. Witness then saw the barman hand him two half-pint bottles of Jumbo light ale. The barman rang up 1s. 1d. on the cash register and gave defend­ant some change.

The waiter then returned to the restaurant. In the evening he saw the same waiter come out of the restaurant carrying five empty half-pint bottles and go to the same public bar. He said to the barman “Two light ales”, putting the bottles down on the counter. The barman said, “How many?” and the waiter replied “Five”. The barman rang up 2½d. on the cash register, gave the waiter his change and two half-pint bottles of Jumbo light ale. The waiter then returned to the restaurant. The next day witness went to the Savoy Cafe and saw Mr. Flessati. He told him who he was and what he had come about. Witness told him they had reason to believe there had been an irregular sale of beer on the premises. After being cautioned he made a statement, which had been read by Mr. Willson. Witness subsequently saw Chiesa, and he also made a statement, which had been read.

By Mr. Mowll: They found no stock of beer on the premises nor any price list.

George Banks, another officer, also gave evidence.

Leonard Barker, the licensee of the Prince Albert public house, said defendant’s waiter had come to his house for beer, and a charge of 2d. was made on each bottle, the money being refunded when the bottles were returned. There was nothing on the bottle to indicate a charge.

Cross-examined, witness said before this case defendant had asked him if he could not let him have the beer at the price of the beer only, without any charge on the bottle.

Mr. Mowll, addressing the Magis­trates, asked, “What is the offence with which my clients are charged?” The offence alleged against them was that they sold beer at an unlicensed place, and if they sold beer at this place they have committed an offence because the restaurant is only licensed for the sale of wines. The point is, did they sell beer at this place? He suggested the evidence was quite clear that every conceivable step was taken to make a sale of beer not at defendant`s premises, but at a public house which was authorised to sell beer. The whole of the allegations of the prosecution was that by a fiction of law if the publican charged 2d. on the bottle, that 2d,. in some way or another, became a profit on the beer. He challenged Mr. Willson to produce any High Court decision to that effect. No such thing had ever been decided that the mere question of the bottle, and the deposit which was paid on the bottle, transferred the sale from the public house to the restaurant. This was a sale at the public house and it was not a sale at the restaurant. The prosecution might be quite right in saying if a waiter were com­mitting an offence he was committing it on behalf of his master, even if the master knew nothing about it, that was to say in law he must be respon­sible for it. He said, however, there was no evidence in that case that there was any sale of beer at the restaurant and that was the whole of his defence and a complete answer. The most which was suggested was that the amount which had been paid for the bottles was taken by the waiter himself, and to that extent the waiter got an advantage out of the transaction.

Mr. Willson said it was a well-known principle of the law relating to agency that if the agent made any concerted profit or gain out of the transaction the status of the agent was destroyed at once. In both cases a profit was made, and therefore at no time was the agent the agent of the Customs Officers. He either became a principal himself or acted as an agent for his employer. In this case he submitted there were two sales, one at the licensed premises and a further sale on unlicensed premises, the restaurant.

After retiring, the Chairman announced that they found there was a sale of beer at the restaurant. Chiesa would be fined £2. Mr. Flessati £3 with 3 Guineas costs, and the case against the company dismissed.

Mr. Mowll asked if the Magistrates would state a case if necessary, and the Chairman said they would be prepared to do so