165 P. 1107 | Mont. | 1917
delivered the opinion of the court.
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 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
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 to defendant’s contract of employment which is made a part of the
There are, however, certain other provisions which at first blush seem to involve the transaction, as between the employer and the salesman, in doubt. The provision that the salesman shall pay for the goods upon their delivery to him, if standing alone, would seem to indicate that an absolute sale was contemplated and that title to the goods passed to the salesman before they were delivered by him to the customers. In cases arising from the consignment of goods under special contract, it is often difficult to distinguish between a sale absolute and a contract of agency, because of the mixed motives of the parties and the artless or artful framing of the contract it frequently contains provisions characteristic of each. If the contract provides that the consignee shall pay for all goods delivered to him, whether they are sold and delivered to the customers or not, and that he may sell or otherwise dispose of them to whom he will and at whatever price he will, the transaction is a sale whatever term may be applied by the parties to describe it. On
Though it is extremely difficult to reconcile some of the conflicting averments which appear in the agreed statement (including the contract), we are led to the conclusion from a consideration of all the provisions that title to the goods remained in the Grand Union Tea Company until delivery was made to its customers; that the company fixed the prices at which the goods were sold; that defendant’s interest extended no further than his commissions upon the sales made by him, and that the obligation imposed upon him to advance the price upon receipt ,of the goods was intended merely to relieve the company from possible loss. (Grand Union Tea Co. v. Evans, 216 Fed. 791.)
The statute under which the prosecution is conducted is penal
Cases not directly in point, but illustrating in a measure the views herein expressed, are: State v. Wells, 69 N. H. 424, 48 L. R. A. 99, 45 Atl. 143, State v. Bristow, 131 Iowa, 664, 109 N. W. 199.
The judgment and order are reversed and the cause is remanded, with direction to discharge the defendant.
Reversed and remanded.