277 P.2d 655 (Okla. 1954), 35275, S. Howes Co. v. W. P. Milling Co.

Docket Nº:35275.
Citation:277 P.2d 655
Party Name:S. HOWES CO., Inc. v. W. P. MILLING CO.
Case Date:July 07, 1954
Court:Supreme Court of Oklahoma
 
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Page 655

277 P.2d 655 (Okla. 1954)

S. HOWES CO., Inc.

v.

W. P. MILLING CO.

No. 35275.

Supreme Court of Oklahoma.

July 7, 1954.

Rehearing Denied Sept. 28, 1954.

Syllabus by the Court.

1. Where an Oklahoma commission machinery broker suggests to a customer the purchase of a certain machine, which was guaranteed by the manufacturer to perform the services for which it was purchased, and the customer sends to the broker an order therefor, which is forwarded to the manufacturer, a foreign corporation, for acceptance or rejection, and said order is accepted and the machine is shipped freight collect directly to the customer, over a route designated by the broker, and the machine is installed in the manner and upon structures, recommended by the broker and the manufacturer, and, upon request by the broker the customer delivers to him a check for the purchase price made payable to the manufacturer and subsequently forwarded to and endorsed by the manufacturer and where the machine proved unsatisfactory and the manufacturer, after a long distance telephone conversation with its Oklahoma broker (or agent) disclosing the unsatisfactory operation of the machine, sent its agent from Kansas City to Muskogee, Oklahoma, to investigate the operation of the machine and such agent suggested changes, including substitution of different parts which the manufacturer furnished for exchange but which did not eliminate the unsatisfactory performance of the machine, there has been such a doing of business in this state as to make the manufacturer amenable to legal process under the provisions of 18 O.S.A. §§ 1.17 and § 472 in an action for damages

Page 656

resulting from alleged breach of warranty of fitness of the machine so purchased.

Banker, Bonds & Wilcoxen, Muskogee, for plaintiff in error.

T. L. Gibson, Norman & Wheeler, Muskogee, for defendant in error.

JOHNSON, Vice Chief Justice.

This is an action brought by W. P. Milling Company, a corporation, as plaintiff, against the defendants, Ward R. McGavren and S. Howes Company, Inc., a foreign corporation, for damages resulting from alleged breach of warranty of fitness of certain milling machinery purchased from defendants. The parties will be referred to as they appeared in the trial court.

The case was tried to a jury and resulted in a verdict and judgment in favor of plaintiff and against the one defendant only, S. Howes Company, who has perfected this appeal. Verdict and judgment having been in favor of the other defendant, McGavren, he need not be further considered as a party to the litigation. The defendant, S. Howes Company, was a foreign corporation not domesticated in this state and service of summons was had upon it by service on the Secretary of State. At every stage of the proceeding, the defendant objected to the jurisdiction of the court over it because it was a foreign corporation. That is the only proposition presented here. Therefore, the only question necessary for determination is whether or not said defendant was doing business, or had done business, in this state, making it amenable to legal process herein.

The plaintiff was organized for the purpose of constructing and operating a grain mill in Muskogee, Oklahoma. For all purposes of the case before us, all of the acts occurred in the year 1948. At that time, Ward R. McGavren was an independent broker, dealing in mill machinery on commission, with his place of business in Oklahome City. He had not had previous dealings with the defendant. The plaintiff desired purchasing a corn with cob and husk separator. It had purchased other mill machinery through McGavren and had ordered a separator, but was unable to get delivery on it. On January 12, McGavren mailed to the plaintiff information and circulars on a machine manufactured by defendant and recommended the purchase of a certain type and size. Inclosed in the letter were order blanks which McGavren recommended be filled out and mailed to the defendant in care of him, McGavren. The machine was ordered in the manner suggested, for delivery not later than June. McGavren acknowledged receipt of the order and forwarded it to the defendant. It was necessary that the order be accepted by the defendant at its home office, the machine to be shipped direct to the plaintiff. Previous to the order, McGavren explained the situation to the defendant and asked that the machine be guaranteed. In reply, the defendant wrote McGavren that it would guarantee the machine to perform as represented.

During the ensuing months, McGavren, after collaborating with defendant, gave detailed instructions to the plaintiff for all construction of the elevator and shuck house. Plaintiff built these structures in conformity with the instructions. There was considerable delay in the delivery of the machine and, before its shipment, the defendant had McGavren make an investigation of the different routes for the purpose of determining the best and fastest way to ship. It was shipped directly from the defendant's plant f. o. b. to the plaintiff, arriving the early part of October. Shortly thereafter, McGavren was in Muskogee, while the machine was being installed. He asked one of the officers of the plaintiff if the invoice had been received. When informed that it had, he remarked that there was a discount if the purchase price was paid immediately. A check therefor was written by plaintiff to defendant and delivered to McGavren who forwarded it to said defendant. He was to receive his sales commission from the purchase price.

After the installation was complete, the machine was put into operation, and, within a few hours, the shucks were set on fire by the friction and carried into the shuck house while still burning. The resulting fire destroyed the shuck house. McGavren was notified and he went to Muskogee. When he was there, the machine was...

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