Bohn Aluminum & Brass Corp. v. Storm King Corp., 14717.

Decision Date23 May 1962
Docket NumberNo. 14717.,14717.
Citation303 F.2d 425
PartiesBOHN ALUMINUM & BRASS CORPORATION, Plaintiff-Appellant, v. STORM KING CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Victor W. Klein, Butzel, Eaman, Long, Gust & Kennedy, Detroit, Mich. (Peirce Wood, Coolidge, Wall & Wood, Dayton, Ohio, on the brief), for appellant.

John Froug, Dayton, Ohio (Froug & Froug, Dayton, Ohio, on the brief), for appellee.

Before MILLER, Chief Judge, WEICK, Circuit Judge, and STARR, Senior District Judge.

WEICK, Circuit Judge.

The District Court granted Storm King's motion for summary judgment and dismissed the complaint on the ground that Bohn was a foreign corporation not authorized to do business in Ohio and was transacting intrastate business without obtaining a license from the state and therefore could not maintain the action. Ohio Revised Code Sections 1703.- 01-1703.31; Manhattan Terrazzo Brass Strip Co., Inc. v. A. Bensing & Sons, 72 Ohio App. 116, 50 N.E.2d 570 (1943); Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949); Lyon v. Quality Courts United, Inc., 249 F.2d 790 (CA 6, 1957). In dismissing the complaint, the District Court relied on the stipulation of certain facts and affidavits.

The stipulation covered only two points: (1) that the plaintiff, prior to this action, had qualified as a foreign corporation but that it had permitted this license to lapse,1 and (2) that the contract upon which the action was based was written by the plaintiff and prepared in Detroit, Michigan and sent to the defendant at Miamisburg, Ohio. Because of disagreement, the parties subsequently met in Ohio and renegotiated the terms of the contract to the mutual satisfaction of the parties. The changed contract was prepared in Ohio.

The affidavit of Joseph A. Zissen, president of Storm King, stated that Storm King transacted business with Bohn in Ohio and entered into the contract in suit in Ohio; that Bohn has maintained an office in the Third National Bank Building in Dayton for the past twelve years; that its factory representative Charles F. Freiburger called upon Storm King on numerous occasions since 1956 to acquaint it with Bohn's products and encourage it to use them; that Freiburger surveyed the needs of Storm King and by reason of said activity the contract in suit was entered into at Dayton, Ohio; that Bohn pays the rent and clerical expenses of its offices in Ohio including the salaries of its factory representatives; that Bohn's name appears on both the general and yellow page listing of the telephone directories and on the doors of its offices and in the building directories of the buildings in various cities in Ohio where it has offices; that the factory representatives in Ohio hold themselves out as having authority to represent Bohn in transacting its business in Ohio.

The affidavit of Charles F. Freiburger stated that he is the plaintiff's sales representative and that he and another sales representative of the company share office space with an insurance company in the Third National Bank Building in Dayton paying therefor $90.00 a month; that the telephone is listed under the name of Bohn; that his and his associate's primary function is to solicit orders for Bohn products which are referred to its Detroit office for acceptance and as an incident thereto they call at the place of business of a customer who made a complaint to investigate its merits and report to Bohn; that Bohn has other sales representatives in Ohio located in Cleveland and Brecksville whose activities are substantially the same as those in the Dayton office except the one in Brecksville operates from his home.

The question whether Bohn was transacting business in Ohio must be determined by consideration of all of the facts and circumstances of the case and applying thereto the applicable law. The District Court, after reviewing the aforementioned papers, granted a summary judgment under Rule 56(c),2 Federal Rules of Civil Procedure, 28 U.S.C.A., determining as a matter of law that Bohn was transacting business in Ohio and had not complied with Ohio law and was not entitled to maintain the present action.

Storm King contends that the maintenance by Bohn of sales offices located in the state of Ohio with resident salesmen who not only stimulated sales but took some part in the adjustment of customer's complaints, the employment by Bohn of clerical help in Ohio, the listing of Bohn's name in building, telephone and classified directories indicated activities wholly local in nature, and in addition to those which may properly be regarded as interstate in character.

It is the position of Bohn, on the other hand, that there was a genuine issue over whether it was transacting business in Ohio. It claims...

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