Graham & Co. v. Duckwall, Fitch & Co.

To Appellees petition for a rehearing

JUDGE PETERS

delivered THE FOLLOWING RESPONSE.

The chief ground relied on in the very elaborate petition for a rehearing in this case is that appellants failed to allege and prove they had, before the articles were sold for the price of which this suit was brought, procured a license from the County Court of Jefferson County to sell goods in the city 'of Louisville by sample, card, specimen, or otherwise, according *20to the provisions of an act entitled, “an act in relation to peddlers selling by sample, card, or otherwise in Jefferson County and city of Louisville,” approved March 2, 1860. (1 Session Acts, 1859-1860, pages 107, 108.) And in consequence of that failure they could not rightfully bring and maintain their action.

It may be remarked that if this act of the legislature is susceptible of the interpretation given to it by the learned counsel who filed the petition for a rehearing, it is strange that the question was not made on the trial of the case in the court below nor in this court.

But we differ essentially from counsel in reference to the meaning and proper construction to be put on the statute supra. The language of the first section is as follows: “It shall not be lawful for any person or persons to sell within the city of Louisville or county of Jefferson by sample, card, or other specimen, or otherwise, any goods or merchandise of any kind or description whatever, for or on account of any merchant, manufacturer, or other person not having his principal place of business within the state, and to whom a license has not been granted under the laws of this commonwealth. And if any person shall sell or exhibit for sale, either by sample, card, or otherwise, in the city of Louisville or county of Jefferson, any goods or merchandise in violation of the provisions of this act, such person so offending shall be liable for a fine of three hundred dollars for every such offense,” etc.

Who are liable to this heavy penalty for a violation of the provisions of this statute? The answer to this interrogatory is contained in the first sentence of the first section thereof; they are the persons within Jefferson County or city of Louisville who sell by sample, card, or otherwise any goods, merchandise, etc., for or on account of any merchant, manufacturer, or other persons not having his principal place of business within this state.

*21Did appellants sell these goods; and if they did, for whom did they sell them — on account of what other persons? The answers must be that Bement sold them by sample for and on account of appellants as merchants; and the sequiter is inevitable that Bement or Cutter, Bement & Co. are the parties who must have the license, and not appellants; and whether they had or had not a license can not affect the rights of appellants.

But another reason assigned for a rehearing, expressed in the following language in the petition, deserves a passing comment: “It may be that the first instruction asked by plaintiffs in a given state of facts is law; but when it is to be given with nothing in conflict with it, as we understand the opinion to decide, we submit that it is bringing the law of . agency into a very limited sphere. ”

In the opinion delivered by this court it is said, referring to certain facts proved: “ This was enough at least to have put appellees on the inquiry as to who were the owners of the goods, and in what character Cutter, Bement & Co. acted in making the sale, and to authorize the first instruction asked by appellants, and any instruction in conflict with it is deemed erroneous. ”

It was perhaps wholly unnecessary to have added the last clause to the foregoing sentence, as there is not the remotest probability that the learned judge who presided on the trial below would ever give instructions in conflict with each other. But that mode of expression was adopted instead of saying that the first instruction asked by appellant, in view of the evidence in the case, should have been given, and those asked by appellees, being in conflict therewith, should have been refused.

We can not suppose that counsel mean, by the paragraph quoted from the opinion, that in stating what instructions were proper this court should have left an open clause by which *22the court below would have been authorized, if not directed, to give conflicting instructions to the jury. Rather than give such instructions it would be better to give none, and leave the jury to decide both law and facts.

Perceiving no sufficient reason in the petition for a rehearing, we are constrained to overrule it.