Montana Attorney General Opinion 15-591

Opinion No. 591 Boor-Wholesaler-Salesman -Agency-Licenses. HELD: Whel'e a beer "&'llesman" lIuys beer on his own account and pays the brewery directly; sells to retailers lind delivers to them from his own truck and collects from the retailers; does not purport to bind the brewery in such transactions; and where the brewery and the retailers do not ap- pear to contract with each other, such "salesman" is an independent trades- man rather than an agent of the brew- ery and he must pa~' the wholesale . beer license. August 16, 1934. You request an opinion whether 01' not a party (hereinafter designated as the "salesman") is required to secure a wholesale beer license in order to do business as he is now doing, or wheth- er he is "iolating Chapter 106, Laws of the Twenty-Third Legislative Assembly and Chapter 46, Laws of the Twenty- Third Legislative Assembly, Extraordi- na ry Session. I ha ye examined the opinion of coun- sel accompanying the files in this case, in which they conclude that the sales- man is not violating the law and that no wholesale beer license is required of him. There are certain facts in ad- dition to those contained in' the opinion referred to, and of which we are ad- vised by you, that should be considered. You advise that the beer sold by the brewery is charged to the salesman and paid for by him at the end of the month, the price paid being the regular wholesale price at the brewery. The salesman sells to retailers, delivers beer in his own truck and collects for same. The brewery does not charge the sales to the retailel·. Neither does the sales- man appeal' to have or exercise au- thority to make representations or war- ranties for the brewery or to incur obligations binding upon the brewery. He has one contract with the brewery and distinct arrangements with his cus- tomers. The customers and the brewery do not, appear to contract with each other. Much of the customary author- ity of a salesman representing a prin- cipal appears to be lacking in this ar- rangement. Although the arrangement is desig- nated as an agency contract it would appear to more closely resemble a di- rect sale to the salesman and are-sale by him to the retailer. Speaking of such a qualified form of "agency" Me- chem's Sales says: "It is also entirely consistent with the arrangement that the "agent" is to sell the goods at a price or upon terms or conditions fixed by the proprietor or manufacturer. A person so situated is often, in pop- ular language said to have obtained the "agency" for the goods, when all that is meant is that he has obtained a more 01' less e."\:clush·e right to buy and resell them in a prescribed territory. The transaction is simple enough, but the reports show many 408 OPINIONS OF THE ATTORNEY GENERAL cases in which the parties have, per- haps, deceh'ed themselves and have certainly attempted to deceive others by calling that, an "agency" which had no resemhlance to an agency in fact, but was simply a sale of a pro- prietary article with a right of re-sale under terms and conditions fixed by the proprietor." (Mechem on Sales, Sec. 44. See Mechem on Agency, Sec. 49.) A leading case is Arbuckle Broth- ers v. Kirkpatrick, 39 S. W. 3. rt may be true that the salesman does not maintain a warehouse or dis- tributing center. It. may be that, there- fore, he does not come within the defi- nition of a wholesaler. If such be the case, it would appear that he is buy- ing and selling beer contrary to the laws of the State of Montana. If, on the other hand, he does maintain a headquarters and it is reasonable to assume that he does have some head- quarters where dealers may be tele- phoned and where books of accounts are kept, he must then be considered as a wholesaler and, upon securing a wholesale license, is authorized to transact business. The fact that the salesman uses his own trucks for deliveries, that the merchandise received is charged to him, that the payments are made by him, and that he does not purport to bind a principal would seem to me to be the factors which would determine his status as an independent trades- man rather than as an agent of the brewery.