State v. Tuffs
| Decision Date | 18 June 1917 |
| Docket Number | 3927. |
| Parties | STATE v. TUFFS. |
| Court | Montana Supreme Court |
Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge.
F. A Tuffs was convicted of violating Laws 1911, c. 110, relating to itinerant venders, and appeals. Reversed and remanded with directions to discharge defendant.
J. D Taylor, of Hamilton, for appellant.
E. C Kurtz, of Hamilton, S. C. Ford, of Helena, and Frank Woody, of Butte, for the State.
This cause was submitted upon an agreed statement of facts. The defendant was found guilty, and appealed from the judgment and from an order denying him a new trial.
The prosecution was conducted under chapter 110, Laws of 1911. Section 1 of the act defines an itinerant vender, and that definition, so far as applicable here, follows:
"Every person who personally solicits orders for the future delivery of any goods, wares or merchandise, either by or without sample, including peddlers and hawkers, is an itinerant vender within the meaning of this act: Provided, however, that this section shall not apply * * * to * * * the representative of any * * * corporation, doing business at a fixed place of business, and taking orders for the future delivery of any goods, wares or merchandise, kept at or in connection with and handled through such fixed place of business."
The acts of the defendant bring him within the inhibition of the statute unless he belongs to the class mentioned in the proviso, and the only question presented for solution is: Was the defendant the representative of a corporation doing business at a fixed place of business, and taking orders for the future delivery of goods kept by such corporation in connection with and handled through its fixed place of business? If he was such representative, the statute does not apply to him. If he was not, he was required to procure a license, and his failure to do so subjected him to the penalty prescribed by the statute.
The question for solution seems to be answered by the agreed statement of facts itself. It was agreed in the court below as follows: (1) The Grand Union Tea Company is a corporation engaged in mercantile business in this state, with a fixed place of business in Helena. (2) Defendant was in the employ of the company, soliciting orders from various persons in Ravalli county "for said Grand Union Tea Company" for coffee, tea, and spices kept by the company at its store in Helena. (3) The orders, when taken, were sent by mail to the company at Helena, and by it filled, and the goods then shipped to the company's order to Hamilton, in care of the defendant. A draft accompanied the bill of lading, and the carrier was instructed to deliver the goods to defendant upon receiving payment of the draft. (4) Upon receipt of the goods, defendant then delivered them "to the various customers of said Grand Union Tea Company who had previously ordered the same." "That all the goods delivered by Mr. Tuffs were previously ordered from the Grand Union Tea Company by the various customers to whom delivery was made." (5) The orders taken were not signed by the customers, and the names of the customers were not known to the company, but were kept by defendant subject to inspection by the company. (6) The company looks to the defendant for the price of the goods so shipped by it, except such portions as are not delivered. These to be returned to the company. (7) The defendant traveled about in a vehicle, soliciting the orders, but no goods were sold by him from his vehicle, and the only goods delivered by him were such as had previously been ordered, and each individual order filled by the company from its stock kept in Helena.
It is made plain by this agreed statement that the Grand Union Tea Company is engaged in mercantile pursuits at a fixed place of business in this state, and that the defendant was in its employ in soliciting orders for goods kept by the company in stock at its Helena store. He solicited orders, not for himself, but "for said Grand Union Tea Company." Each order was filled separately by the company from its stock in Helena, and the orders thus filled were delivered, not to the defendant's customers, but "to the various customers of said Grand Union Tea Company who had previously ordered the same." As if to make this fact more emphatic, the statement is repeated in substance:
"All the goods delivered by Mr. Tuffs were previously ordered from the Grand Union Tea Company by the various customers to whom delivery was made."
Goods previously ordered by a customer, but for any reason not delivered to him, are returned to the company. These provisions seem to leave no doubt that the goods belong to the company until delivery is made to the customer, and that in soliciting the orders and making deliveries the defendant acted as the representative of the company; and this position is fortified by reference...
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