Montana Attorney General Opinion 15-500

Opinion No. 500 Licenses-Wholesalers-Interstate Commerce-Order, Definition of. HELD: One who does not take or- ders but conducts a wholesale business from a truck is a dealer at who'lesale and subject to the provisions of Chapter 164, Laws of 1933. 'Yhat constitutes an order for mer- chandise to be shipped into the state must he determined by the facts and circumstances of each case, but a re- quest for fruit and vegetahles, without quality, quantit~', amount, price, etc., would hardly amount to an order. March 24, 1934. Cuncerning your further inquiry rei a- th'e to the "wholesale license law" I wislt to advise that if the facts are as you state them in your letter, to-wit: the trucker does not take and fill or- ders and does not, maintain a place of Imsiness outside the state where he 342 OPIXIONS OF THE ATTORNEY GENERAL keeps his merchandise, but simply buys merchandise upon the open market wherever he may be able to find it. loads in onto his truck, brings it into the State of Montana and sells it di- rect from his truck, then in my opinion he would be a "dealer at wholesale" within the meaning and subject to the proYisions of Chapter 164, Laws of Ul33. You have asked for a definition of the word "order" and whether a re- quest or "order" for "fruit and vege- tables" without specifying quantity. quality, price. date of delivery, etc. would be within the meaning of an "order" as usen by the authodties cited in our opinion No. 294, under da te of August 8th, Hl33. It is my opin- ion tha t this would hardly be a bona fide order but would seem to amount to "no more than the mere subterfuge to evade the law. An aCCel)tance of such a request or so-called "order" would be too indefinite to constitute a bind- ing contract upon the merchant who made it. It, is difficult if not impos- sible to give an exact definition of an order which would be applicable in all cases. The facts and circumstances of each case would have to be considered before we could determine its legal effect.