Arthur A. Bishop & Co. v. Thompson

• Decision Date: 07 October 1925
• Citation: 130 A. 701
• Court: Vermont Supreme Court
• Parties: ARTHUR A. BISHOP & CO. v. THOMPSON.

130 A. 701

ARTHUR A. BISHOP & CO.

v. THOMPSON.

Supreme Court of Vermont. Windsor.

Oct. 7, 1925.

Exceptions from Hartford Municipal Court; A. G. Whitham, Judge.

Action by Arthur A. Bishop & Co. against J. D. Thompson. Judgment of dismissal, and plaintiff brings exceptions. Reversed and remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.

Pingree & Pingree, of White River Junction, for plaintiff.

Raymond Trainor and Paul Gilioli, both of White River Junction, for defendant.

WATSON, C. J. This case is here on exceptions to the rulings of the Hartford municipal court in which a trial was had by jury until the close of the evidence, when the action was dismissed by the court on defendant's motion, as stated below. On plaintiff's exception to this ruling the case is here. The action is one of contract, brought to recover the amount remaining unpaid on a certain contract note executed by the defendant and payable to the plaintiff, in terms as follows:

"$60.00 Norwich, Vt., Aug. 27, 1921.

"For and in consideration of a contract and agreement entered into this day with me by Arthur A. Bishop & Co., of Boston, Mass., whereby I am entitled to the use of said company's system of collections, I hereby, for value received, promise to pay to said Arthur A. Bishop & Co., or order, at their offices in Boston, Mass., the sum of sixty dollars, in twelve equal monthly payments of five dollars each, the first monthly payment to be made upon the signing of this contract note, and the remaining eleven payments of five dollars each to be made upon the same date of each succeeding month; provided, however, that, upon the default of any one payment, the whole amount remaining then unpaid shall at once become due and payable, and I hereby acknowledge the receipt of a true copy of this entire agreement. "Client's Signature: J. D. Thompson.

"Address: Norwich, Vt. "Signature of Agent and Witness: C. J. White. "[U. S. Stamp.]"

On the back of this note was indorsed, under date of February 15, 1922, $18.84.

The execution of the instrument and the action of the parties under it were shown by evidence on both sides and undisputed. At the time this transaction was entered upon, defendant was and hitherto had been, a resident of this state.

It appeared that Arthur A. Bishop, a resident of the state of Massachusetts, having his office and principal place of business at Boston in that state, was there, under a system of contract form of his own, carrying on the business of collecting accounts and demands for other people who, as clients, might contract with him for such service in the manner shown by said contract note under the name of "Arthur A. Bishop & Co.," and that neither as partner nor otherwise did any other person or persons own any interest in said business. The undisputed evidence showed that Bishop had been so carrying on such business in Boston for "20-odd years," and that C. J. White, who signed the contract note as witness, had been agent for Bishop in this state and in the state of New Hampshire, in there soliciting such contracts in connection with said business, under the same firm name, for about the same length of time, and was acting as such agent in this state at the time the transaction was had with defendant, resulting in the latter's giving the contract note in question; that plaintiff had no office nor place of business in this state; that White was then residing in St. Johnsbury, but had no office or place of business, the room in which he lived being his headquarters; and that his compensation as such agent was wholly by way of a commission on each contract obtained by him.

Whether the business so done constituted interstate commerce, as claimed by the plaintiff in his brief, we do not consider, for no such claim was made by him below in opposition to the motion to dismiss, and consequently cannot now be made in support of his exception to the ruling made. Grand Lodge of Masons v. Burlington, 84 Vt. 202, 78 A. 973; Nichols v. Central Vt. Ry. Co., 94 Vt. 14, 109 A. 905, 12 A. L. R. 333.

There was no evidence tending to show whether, prior to the issuance of the original complaint in this case, Arthur A. Bishop filed the returns and paid the registration fees required by the provisions of chapter 240 of the General Laws of the state of a person doing business in the state under any name other than his own.

At the close of the evidence the defendant moved that the action be dismissed on the ground that the plaintiff was doing business in Vermont, had headquarters in St. Johnsbury, with a resident agent there, without having first complied with the requirements of chapter 240 in the respects named above; and consequently by the terms of section 5751 the court was without jurisdiction or the process and the complaint void. To this motion the plaintiff replied that there was no evidence and no presumption that the plaintiff was doing business in this state within the meaning of the statute; and that, as shown by the evidence, the contract and note in question were accepted by plaintiff at his office in Boston, by reason of which that was the place of the contract. The motion was sustained and the suit dismissed, to which the plaintiff excepted. The correctness of this holding is the sole question for consideration.

We say nothing as to which party had the burden of proof on the question of compliance with the statute (if applicable) requiring the filing of returns and the payment of registration fees by the plaintiff, which was ruled against him without any evidence whatever tending either way, and pass to the question of the place of the contract.

The agent White testified that the contracts with clients were in note form, and, when obtained, a copy thereof was left with the client, and it was so done with the defendant, but that the original which he procured from defendant was sent to the Boston office. It is not necessary to state in detail the evidence touching the place of the contract. As before seen, the plaintiff contended in the court below, and does now, that on the evidence the contract note was accepted by him at his office in Boston. The truth of this contention as to the place of such acceptance by plaintiff was not denied by the defendant in that court, and it is conceded by him in his brief filed in this court. It follows that until such acceptance the note did not become a legal obligation, for it is a common principle that the place of a contract is where the last act essential to its completion was done. 1 Williston, Cont. § 97; Emerson Co. v. Proctor, 97 Me. 360, 54 A. 849; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241. The contract note was therefore made in the state of Massachusetts (Barrett v. Kelley, 66 Vt. 515, 29 A. 809, 44 Am. St. Rep. 862; Smith v. Anderson, 70 Vt. 424, 41 A. 441; Harrison v. Edwards, 12 Vt. 648, 36 Am. Dec. 364; Peck v. Mayo, 14 Vt. 33, 39 Am. Dec. 205), and by the terms thereof it was to be performed there.

It cannot be assumed that the trial court made any finding or findings in connection with the ruling, for to the court's question to counsel whether they wished him "to make some findings here (there) or go up on your (the) record," counsel on each side answered that he wished "to go up on the record." Whereupon the court said, "It is agreed that the case may go up on tie record." And the bill of exceptions states:

"It was agreed that this...