State v. Coop

• Citation: 30 S.E. 609,52 S.C. 508
• Parties: STATE. v. COOP.
• Decision Date: 05 July 1898
• Court: South Carolina Supreme Court

30 S.E. 609

52 S.C. 508

STATE.

v.COOP.

Supreme Court of South Carolina.

July 5, 1898.

Hawkers and Peddlers—Who are.

An agent, in delivering portraits which his principal manufactured under contracts requiring their delivery in frames, sold the frames to the portrait buyers, the option to purchase being given them by the contracts. He did not sell them to others than portrait buyers, or go anywhere to sell them except where he had to deliver portraits. Held, that he was not within Act 1893 (21 St. at Large, p. 407), requiring hawkers and peddlers of goods to pay a license fee.

Jones, J., dissenting.

Appeal from general sessions circuit court of Orangeburg county; O. W. Buchanan, Judge.

C. E. Coop was convicted of selling merchandise without a license, and, his appeal to the circuit court having been dismissed, he appeals. Reversed.

P. H. Nelson, for appellant.

W. St Julien Jervey, for the State.

GARY, A. J. The defendant was tried and convicted before a magistrate for selling picture frames without a license. The case contains the following agreed statement of facts, to wit: "The Chicago Portrait Company is a corporation of the state of Illinois, its place of business being in the city of Chicago, in the said state, engaged in the business of making portraits in oil, India ink, water color, and pastel, from photographs. That in the prosecution of its business the said company has agents traveling in this and other states, who solicit orders, and upcn securing an order the agreement marked 'Exhibit A' in the brief is signed by the agent, and turned over to the party giving the order, and a duplicate forwarded to the company at Chicago. When the portrait ordered is ready for delivery, a notification, as appears by Exhibit B, is sent to the person who had ordered same, and the agent of the company delivers the portrait at the time therein named, in a frame, which the party can purchase if he sees fit. The portraits and frames are shipped from Chicago to the place where they are to be delivered, consigned to the Chicago Portrait Compauy, and are received and receipted for by the agent of the company. The defendant, C. E. Coop, was delivering portraits in frames on the 5th day of May, 1897, in the town of North, county of Orangeburg, state aforesaid, in pursuance of the agreement and notification above set forth, when he was arrested, tried, and convicted for not complying with the act of 1893 in reference to hawkers and peddlers."

Exhibit A is as follows: "Crayon, $1.98, unframed. Pastel, $3.96, unframed. Chicago Portrait Company, 241-247 South Jefferson Street, Chicago. Portraits made in oil, India ink, water color, and pastel. We manufacture all the latest designs, and everything in the line of frames which the trade demands. On or about May 2d, 1897, we agree to deliver to the holder of this ticket a finely finished pastel portrait, 16x20, same as shown by our salesman. The purchaser agrees to pay $1.98 for the portrait when delivered. We do not compel you to buy a frame from us, but, owing to the delicate nature of the work, all portraits are delivered in appropriate frames, which our patrons may buy, if they desire, at wholesale prices. Elegant patterns, that retail from $4.00 to $8.00, we furnish from $1.25 to $2.90. Remember we do not insist on your buying frames from us, but we think it advisablefor you to be prepared to purchase in case we make you prices from one-third to one-half the usual retail prices. Please remember the date of delivery, and have the money ready, as our delivery man can make but one call to collect charges for same. Please be at home, or leave the money with nearest neighbor. [Signed] J. S. Jewell. Advertising Solicitor Chicago Portrait Company.

"$20 pastel portraits for $3.96. $10 crayon portraits for $1.98. Groups extra."

Exhibit B is as follows:

"Chicago, 111., —, 1897. Your order for a life-size portrait has been finished, and will be delivered at your residence on or about — to —, 1897. Crayon, 16x20, $1.98 each. Pastel, 16x20, $3.96 each. Please be prepared to receive the same, as delivery man will have only a few hours in your city. Remember our delivery man will show you a fine selection of frames, and if you desire you can purchase one at wholesale prices. Elegant patterns that retail from $3 to $8.00 we will furnish from $1.25 to $2.90. It will be to your interest to be prepared to purchase. Please do not be uneasy if we are late, as we are sometimes delayed owing to bad weather, etc. If you have moved, or will not be at home on the above date, please leave the money with your nearest neighbor, and drop a card in your post office addressed to our delivery man, and tell him where you have moved, or where you have left the money for your picture. Yours, respectfully, J. L. Walkup, Delivery Man.

"For further information address Jewell S. Jewell, State Manager, Columbia, S. C.

"Chicago Portrait Company. Studio, 241-247 S. Jefferson St., Chicago, 111."

The defendant appealed to the circuit court. His honor, Judge Buchanan, dismissed the appeal, whereupon the defendant appealed to this court upon the following exceptions: "(1) Because his honor erred in overruling the defendant's exceptions and grounds of appeal from the ruling of and judgment of the magistrate herein. (2) Because his honor erred in not holding, as he was requested to do, that the defendant was not a hawker and peddler of...