Bouanchaud v. Standard Coffee Co.

MOUTON, J. The sheriff and tax collector of Pointe Coupee parish, alleging that defendant company was pursuing the business of a peddler in that parish in the year 1928, without first obtaining state and parish licenses, brought this suit for the collection of these licenses. The district judge rendered judgment against defendant for $200, amount for [86] state license, but declined to hold the company for the parish license for lack of necessary proof. The sole question here is as to whether defendant company was a peddler. The business establishment of defendant is located in New Orleans. The defendant denies it is engaged in the business of hawking or peddling, but says that on the contrary it is engaged in selling coffee, tea, spices, and other merchandise, direct to the householders on the orders of its salesmen usually given by housewives a week or two prior to the shipment of these articles from New Orleans, from where they are shipped for delivery. Defendant contends that the base of its business operation is in New Orleans, from where its goods are distributed on orders given to its salesmen. I. C. Richard, the record shows, was its route salesman in the parish of Pointe Coupee, where the goods in question were purchased. The question presented is as to whether Richard went from house to house, place to place, etc., selling the goods he carried with him and delivered them at the time or immediately after the sale or without returning to the base of operation between the taking of the order and the delivery of the goods. If he made the sales with delivery at the time or immediately after the sale, or without returning to the base of operation between the order and delivery of the goods, defendant was a peddler under the terms of section 18, par. D, of Act No. 205 of 1924, as added by Act No. 241 of 1928, p. 348, sec. 2, amending section 2 of Act No. 299 of 1926, upon which this suit is brought. The proof shows that defendant is engaged in the sale of coffee, but shows also that it sells other articles of commerce. It is in evidence that it usually sold coffee, and, in some instances, other goods to various customers in Pointe Coupee, on orders which had been previously taken by its salesman for delivery. In the sales thus effected defendant could not be, under the provisions of the statutes above referred to, classified as a peddler. The record shows that coffee was generally sold under these prior orders and was brought to the homes of the purchasers in a truck from which delivery was made by Richard; also that other goods, such as soap, black pepper, etc., were likewise carried in the truck. It is also clearly established that soap and black pepper were sold by Richard to several housewives without any prior or previous orders given to him therefor, as was the case when coffee was purchased. The proof is that the soap and pepper thus sold were paid for cash and were delivered to them from the truck at the time of the sales, and certainly without returning to the base of the business operation of defendant company between the orders and delivery. The defendant was therefore peddling these goods through its salesman, Richard, and hence was a peddler under the terms of the statutes above cited. Counsel for defendant says, in the case of Oden, Tax Collector, vs. Zachery, 6 La. App. 594, that this court held otherwise. In that case it was shown that Bradford traveled in an automobile every two weeks in Allen parish, where he made the sales of the goods. In referring to Bradford, we said; “Bradford says that defendant would take orders on one trip and make deliveries on the next trip.” [87] This statement of the court gives the gist of the question therein submitted and shows clearly that there was a return to the base of business operation which was in the parish of Rapides, between the taking of the orders, and the delivery. It also repels any inference to the effect that the goods were bought for cash, and immediately delivered, which was shown in the instant case. Counsel for defendant relies with confidence on the case of Commonwealth vs. Ober, 12 Cush. (Mass.) 498. It is not necessary for us to make an extensive analysis of the opinion therein rendered. In that suit the court referred to the salesman as being a carrier, ‘‘delivering goods to persons who had previously ordered them,” which the record shows Richard was usually doing for defendant company. In referring to a purchase which had been effected under a prior order, the court in that case said: “It was, in effect, a purchase of the same buyer from the same seller, of the same commodity, to a larger amount than previously ordered.” In this case: “It was in effect a purchase by the same buyers from the same seller.” But right here the similarity between this and the cited case stops and ceases. And here, the purchasers were certainly not “of the same commodity, to a larger amount previously ordered” which constituted the basis for the decision quoted by counsel, in which the court concluded that the purchaser had simply enlarged his' previous order. Here, th^ purchases were not made to enlarge any prior orders. The soap and black pepper were sold on the spot, for cash, and were delivered at the time from the truck in which they were carried by Richard with the coffee which he usually delivered every two weeks. These purchases were contracts distinct and separate from the ordinary purchases by previous orders. Evidently, they certainly did not constitute any enlargement of previous orders that had been placed with defendant company. Our interpretation of our statutes is not at variance with the decision relied on by counsel for defendant, but is rather in harmony therewith as we understand the ruling of the court. The record shows that Richard made about 17 sales of this soap and pepper. By a process of elimination adopted by counsel, he contends that these sales should be reduced to 12. Basing himself on this reduction, or even admitting that 17 sales were actually effected, counsel contends that these were isolated transactions and do not afford sufficient proof to show that defendant was engaged in peddling as a business. We are of the opinion that the, various sales to which we have referred show that the defendant was a peddler-» and that is all which is required under the statutes for the imposition of a license. Finally, counsel contends that defendant being a corporation cannot travel on foot or on horseback, and does not come within the definition of peddler given in Act No. 299 of 1926, as amended by Act No. 241 of 1928, upon which this suit is based. True it is that corporations are ideal beings that can be conceived only by the understanding, and are incapable of the performances to which counsel refers, still it is obvious that they can travel in autos, trucks, on foot, and on horseback through their salesmen or agents, which is- the case here. [88] Section 1 of Acts No. 299 of 1926 and No. 241 of 1928 provides for the levy of an annual license on all persons, association of persons, or corporations, etc., and, in section 2 requires the enforcement of a license from every peddler, hawker, etc. The defendant is shown to be a peddler, for the reasons above stated, and comes within the grasp of those provisions of the statutes, which made it liable for a state license as was held below.