103 Va. 855 | Va. | 1905
delivered the opinion of the court.
Plaintiffs in error were tried and convicted upon information, in the Corporation Court of the city of Manchester, for peddling goods, wares and merchandise in that city without having first obtained a license as required by statute.
It appears that the L. B. Price Mercantile Company, a Missouri corporation domiciled at Kansas City, had established store-rooms, or depositories, for its goods in some twenty odd States of the Union. Among them, two were located in this State — one in the city of Norfolk, and the other in the city of Eichmond. The plaintiff in error, Crall, was the vice-president of the company, in general charge of its business in the Southern States, and with headquarters at Norfolk; while the plaintiff in error, Ostrander, under the supervision of Crall, was in charge of the Eichmond depository.
Two theories are presented as to the company’s methods of
The contention of plaintiffs in error is that they were doing an installment business through agents, who were supplied with samples and order-books, and whose duty it was to exhibit the samples and to canvass for purchasers, turning in all orders received by them to those in charge of the company’s depositories; that thereupon the orders filled by another agent, who delivered the goods, collected a certain part of the purchase price, and took from the purchaser a written agreement providing for future payments in monthly installments, and stipulating that the goods were not to be removed from the place of delivery or sold or disposed of until fully paid for.
The opposing theory of the Commonwealth is that the course of business of the company was to deliver to its agents goods, wares and merchandise, to be carried by them from place to place and left with the purchaser on “general leases” — that is to say, to be paid for in installments, the L. B. Price Mercantile Company retaining title until the entire purchase price, was paid.
The company dealt in rugs, curtains, bedspreads, blankets, covers, dress patterns, clocks, plated ware, wringers, albums, pictures and other wares usually sold by peddlers.
The statute upon which the prosecution is founded is as follows:
“Any person who shall carry from place to place any goods, wares or merchandise, and offer to sell or barter the same, or actually sells or barters the same, shall be deemed to be a peddler, and any person licensed as a peddler may sell any personal property a merchant may sell, or he may exchange the same for other articles; and whenever a license is granted to a peddler to sell such goods, wares or merchandise his license shall be valid for one year from date of its issue. Said license
At the trial, the whole matter of law and fact having been
The law is well settled that a corporation may be punished criminally for peddling through the medium of an unlicensed agent. While a peddler’s license cannot issue to a corporation as such, it is competent for a corporation desiring to peddle its goods to take out license in the name of a designated agent, and such agent may lawfully peddle the goods of the principal. Standard Oil Co. v. Commonwealth (Ky.), 55 S. W. 8.
This seems to be conceded; but it is insisted that where a corporation is guilty of a violation of the peddlers’ act, the punishment must be visited only upon the corporation, and the agent who actually makes the sales.
The statement of the law is too narrow, and, if followed, would in many instances afford immunity to the chief offenders, the officers of the corporation, without whose assistance it would be impossible for the corporation to engage in the prohibited business. A corporation can act alone through its officers and agents, and where the business itself involves a violation of the law, the correct rule is that all who participate in it are liable. “The Law of Orimes” (Clark & Marshall), pp. 395, 6, 7; 1 Bish. on Grim. Law (7th Ed.), sec. 892; City of Wyandotte v. Corrigan (Kan.), 10 Pac. 99, 102; Standard Oil Co. v. Com., supra; Hays v. Com., 55 S. W. 425, 426.
“When the agent performs the illegal act under an absent principal’s direction, either express or implied, this imposes responsibility on the principal.
“In misdemeanors, the act may be charged to have been
“A principal is prima facie liable for the illegal acts of an agent done in a general course of illegal business authorized by the principal.” Id. sec. 247.
In this case it is contended that the plaintiff in error, W. E. Orall, was vice-president and general manager of the L. B. Price Mercantile Company, in charge of all its business in the Southern States. He was the vice-principal, and the trial court was warranted in the conclusion that he was cognizant of the fact that the-subordinate agents of the company were peddling its goods without license.
The case is unaffected by the circumstance that the transaction was denominated a lease, and that title to the goods was to remain in the seller until the rent was j>aid. The agreement was accompanied by a delivery of the goods, and, by its terms, title was to vest in the purchaser upon payment of the deferred installments of rent. Such a transaction is a sale in contemplation of the peddlers’ act. City of South Bend v. Martin (Ind.), 41 N. E. 315, 29 L. R. A. 531; Ry. Co. v. Ervine, 84 Ind. 457; Lawrence v. McGregor, 94 Ind. 301.
Eor these reasons the judgment of the Corporation Court of the city of Manchester must be affirmed as to the plaintiff in error, W. E. Orall.
The record presents quite a different case as to the plaintiff in error, O. O. Ostrander. He was only found guilty under the second charge in the information, namely, of the unlawful sale, on October 20, 1902, of a piece of dress goods to one Lucy J. Clarke.
It appears from the evidence that this sale was made before Ostrander became manager of the Hichmond store, and he cannot be held responsible therefor.
The judgment as to him must, therefore, be reversed and
Affirmed in part,- and reversed in part.
