Greek-Am. Sponge Co. v. Richardson Drug Co.

• Citation: 124 Wis. 469,102 N.W. 888
• Parties: GREEK-AMERICAN SPONGE CO. v. RICHARDSON DRUG CO.
• Decision Date: 14 March 1905
• Court: United States State Supreme Court of Wisconsin

124 Wis. 469

102 N.W. 888

GREEK-AMERICAN SPONGE CO.

v.RICHARDSON DRUG CO.

Supreme Court of Wisconsin.

March 14, 1905.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by the Greek-American Sponge Company against the Richardson Drug Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover the amount due for goods and merchandise which plaintiff claims to have sold defendant in the month of June, 1903. The cause was tried by the court without a jury. From the facts found by the court it appears: The plaintiff was at the time of the transactions in controversy a foreign corporation organized and existing under the laws of the state of Illinois, and was engaged in the business of buying and selling sponges at the city of Chicago. It has not filed its articles of association with the Secretary of State of Wisconsin, as required by section 1770b, Rev. St. 1898, and the acts amendatory thereof. Defendant is a corporation organized under the laws of this state, engaged in the drug business at the city of Milwaukee, Wis. As to the sale of sponges in question, the following negotiations and dealings took place: E. L. Leser, residing at Milwaukee, as plaintiff's traveling salesman for this and other territory, negotiated with defendant's representative in the early part of June, 1903, to sell it some goods. Defendant informed him, through its president, that it wished to purchase a bale of a certain kind and quality of sponges, which were offered at the regular market price. It was arranged between the parties that plaintiff should select from its stock at Chicago a couple of bales of the specified goods, and ship them to Milwaukee for defendant's inspection, and defendant was to have the privilege of accepting one and of rejecting one or both of them. Plaintiff's agent then issued in his own name a written order on plaintiff, at Chicago, for the two bales of sponges, with instructions not to ship, but to hold them for his inspection. About June 24th thereafter, plaintiff, under this order, shipped two bales of these goods, with other goods, to Milwaukee, Wis. These goods were consigned to plaintiff's traveling salesman, by whom they were received, and placed in the Plankinton Hotel for defendant's inspection in the bales. When defendant's officers were requested to inspect them at the hotel, they informed plaintiff's agent who had them in charge of their inability to do so, and requested him to select and send the bale of best value to its place of business for examination; if suitable, it would keep it, and, if not, it would send it back. Thereupon plaintiff's agent opened the bales at the hotel, examined the goods, then put back what he had taken out and closed the bales as they were before, and delivered the one selected by him to defendant. He then made out and transmitted to plaintiff another order for the goods so delivered. The goods were received by defendant, the bale opened, and examined by soaking out one or two of the sponges, and apparently found to be all right. Defendant at about this time received a bill or invoice from plaintiff, dated June 24, 1903, specifying the sale and delivery of the goods through its agent (naming him), also the kind, quality, and price of the goods, and the amount due therefor, with the statement: “All claims must be made within three days after receipt of goods.” Plaintiff requested payment of the account, and, upon failure of payment, on August 12, 1903, drew on defendant through the bank for the amount by a draft, which was returned unpaid. Upon further request for payment, defendant, without further communication with plaintiff, neglected to do so, but on October 30, 1903, reshipped the bale of the unsold goods to plaintiff, and mailed it a statement giving the invoice of the goods as originally delivered by plaintiff to defendant, deducting therefrom the amount sold, which was the balance due plaintiff. Plaintiff refused to accept this reshipment and return of the property. The court made the following specific findings: “That the size and quality of sponges can be ascertained by inspection after soaking them out, and defendant could and did ascertain the size and quality of the sponges by an inspection after opening the bale and soaking one or two of them out.” Also: “That plaintiff made no warranty nor representation respecting the goods, other than is contained in these findings.” The court concluded, as matter of law: (1) That the transaction amounts to a sale of the goods to defendant in the original package as shipped into the state; (2) that the goods, when so sold, were not mingled with, nor had they become a part of, the mass of property within this state; (3) that the plaintiff, up to the time it delivered the goods to defendant, was engaged in interstate commerce, and that plaintiff therefore had the right to make this sale as an incident to this transaction; (4) that in making this contract it did not violate section 1770b, Rev. St. 1898, and amendments thereof, because the transaction is exempt from the provisions of this section, as one pertaining to interstate commerce; (5) that plaintiff was entitled to judgment for the amount claimed under the sale. This is an appeal from the judgment.Edgar L. Wood, for appellant.

C. T. Hickox, for respondent.

SIEBECKER, J. (after stating the facts).

The appellant urges exceptions to the court's finding to the effect that the bales of goods were in the custody of plaintiff's agent at the hotel in Milwaukee for the purpose only of giving defendant an opportunity to inspect them, to determine whether they were to be accepted or rejected by it under the contract of sale, and the further finding that the bale of goods, when delivered to defendant, was in the original package, as transported from Chicago to Milwaukee. The findings are excepted to upon the ground that they are inferences of fact not justifiable from the evidence adduced. Plaintiff's agent, Mr. Leser, is the only witness testifying on this subject. His evidence is that the two bales of goods, consigned in his name, were shipped to Milwaukee by plaintiff for the purpose of affording defendant the opportunity of inspecting them under the terms of the agreement theretofore made between the parties; that he received the two bales, with other goods, at Milwaukee, and transferred them to a hotel for the purpose of having them inspected by their customers for acceptance or rejection; and that, if accepted, he would deliver them to the purchasers; if rejected, they would be returned to the plaintiff at Chicago. It appears that defendant's officers were unable to make the inspection, but directed plai...