Commonwealth v. Farnum

114 Mass. 267

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1873
• Status: Published

Opinion

Endicott, J.

A hawker and peddler is an itinerant trader, who goes from place to place, and from house to house, carrying for sale and exposing to sale the goods, wares or merchandise which he carries. He generally deals in small and cheap articles, such as he can conveniently carry in a cart or on his person. Such hawker and peddler, or any other person who does the same business in the same manner, if unlicensed, is liable to punishment undey the Gen. Sts. c. 50, § 27.

The only question presented here is whether the defendant, in doing the acts that he did, without a license, came within the provision of the statute. At the time charged in the complaint he was in the employment of the general agents of the Florence Sewing Machine Company, who occupied the company’s office at Boston, and who sold and distributed the machines manufactured by the company. He had a wagon in which he carried a sample machine, and the attachments to the same, which he exhibited together with samples of its work, for the purpose of soliciting and obtaining orders for the machine. He also distributed pamphlets explaining its merits and mode of use. Under the seat of his wagon was a box containing sewing silk and cotton thread. The silk was not for sale, but was carried for the purpose of advertising the same kind of silk, sold by the company at wholesale under their label. The cotton thread was used in exhibiting the machine, and each purchaser of a machine was supplied with a small quantity as a gratuity. The orders obtained were sent to his employers in Boston, and the machines, sent in response thereto, were delivered by him to the purchaser. Sometimes the sample machine was left for trial, and sometimes, when the purchaser wanted a machine immediately, he would deliver the sample machine, thus filling the order at once, although this was not his usual mode of business. When a machine was delivered under an order, a conditional contract of sale with the company was ligned by the purchaser, and an instalment on account was paid by the purchaser to the defendant. All other instalments were payable at the company’s office in Boston, and in the contract certain rights were reserved to the company itself in case of nonpayment.

Upon these facts we think the jury should have been instructed that the defendant was not liable. He was an agent soliciting orders, and a carrier delivering machines ordered. He made no direct sales himself. He did not carry and expose goods for sale within the meaning of the statute, and his acts did not come within the mischief the statute is intended to prevent. The article he carried was a sample of that which he proposed the purchaser should buy of the company. The fact that he occasionally delivered the sample machine to a purchaser, desirous of obtaining one immediately, cannot so change the character of his business as to bring him within the statute. Nor did the fact that he sold one attachment, and one tuck-marker, capable of being attached, render him liable; it distinctly appearing that it was not his practice to make such sales. The question is to be determined on the general character and scope of his business ; if this does not bring him within the statute, he is not liable for single sales of particular articles, such sales being exceptional, and not in the course of his ordinary employment. As the agreed facts put in evidence by the Commonwealth, while stating the occasional delivery of a sample machine, and the separate sale of two attachments, also include the statement that it was not his custom so to do, the jury would not be warranted in finding from these acts, being exceptional, a practice to carry and expose for sale, and so change the character of his business. Commonwealth v. Ober, 12 Cush. 493, 496. This case is governed by the rule laid down in that decision.

Exceptions sustained.