34 Mo. 424 | Mo. | 1864
delivered the opinion of the court.
The appellant was indicted for dealing as a merchant in the selling of goods, wares, and merchandise, viz., one coat, one pair of pants, and one vest, without having any license therefor continuing in force. The cause was tried by the court without a jury, upon the facts agreed as follows : “ It is agreed that, for one year prior to the finding of the indictment in this case, the defendant was a tailor in the city of St. Louis, in St. Louis county ; that during said time he kept on hand, at his place of business in said county, a lot of cloths, cassimeres, and vestings, for the purpose of manufacturing the same into suits of clothes, coats, pants, or vests, as persons might from time to time order them for their own use; that from the material on hand, as aforesaid, various persons selected such as suited them, and ordered the defendant to manufacture the same either into a suit of clothes, or into coats, pants, or vests, for the personal wear of such persons, and the defendant did take the measure of such persons, and did so manufacture the material selected, and deliver the garments to such persons, and charge and receive pay for them when completed — such pay including the price of the goods, and the making of them into said garments. It is further agreed, that, during said time, defendant kept no cloths, cassimeres, or vestings, on hand for sale, nor did he sell or offer any for sale, except as above set forth ; that during said time he did not keep .on hand for sale, nor did he sell or offer for sale, any ready-made suits of clothes, or any ready-made coats, pants, or vests, except as before set forth; and that he did not manufacture any garments whatever for the trade to be sold again, manufacturing, only to order, and for the individual wear of the persons having ordered them; that during said time he did not keep on hund for sale, nor did he sell or offer to sell, any cloths, cassimores, or vestings, except as hereinbefore set forth ; nor did
Defendant has a sign in front of his store, upon which is printed “merchant tailor,” and had no license to deal as a merchant during said time.” The court refused to declare the law to be, that, on the facts agreed, the defendant was not a merchant, but found the defendant guilty in manner and form as charged in the indictment, and rendered judgment accordingly. The defendant duly excepted, and has brought the case here by appeal. The act to tax and license merchants, under which the appellant was indicted, defines a merchant to be one “ who shall deal in the selling of goods, wares, and merchandise, at any store, stand, or place occupied for that purpose.” (Acts of 1859, p. 53, § 1.) The definition implies the presence of stock in trade which, when the party dealing sells, may be presently delivered to the purchaser. (Id. § 6, p. 54.)
To be a merchant in the sense of the law, the dealer must have on hand goods, wares, and merchandise ready for sale and present delivery, and must also actually deal in the selling of the same. One who manufactures and supplies goods alone to the previous order of his customers, although he keeps on hand, but not for sale, the materials from which the manufactured articles are produced, is not a merchant within the meaning of the statute. The facts agreed in this case show that the business of the appellant consisted exclusively in fabricating suits and parts of suits of clothing for his customers, upon their previous orders. He was a manufacturer and not a merchant. The case in its facts and in principle is, clearly distinguishable from the State v. Whittaker, 33 Mo. 457.
The court erred in refusing to declare the law as asked, and for this cause the judgment is reversed.
