Bruner v. Kansas Moline Plow Co.
| Decision Date | 22 March 1909 |
| Docket Number | 2,810. |
| Parties | BRUNER et al. v. KANSAS MOLINE PLOW CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
(Syllabus by the Court.)
The sale of goods in a state or territory by a foreign corporation by means of a solicitor, the delivery of the merchandise thereunder, and the collection of the price, do not constitute doing or carrying on business within such a state or territory within the true meaning of foreign corporation statutes prescribing the conditions of doing business in such states or territories.
William I. Gilbert and Edward H. Bond, for plaintiffs in error.
Frank H. Heskett and Eugene E. Morris, for defendant in error.
Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.
On March 18, 1903, the defendants below, who were partners in business at Waurika, in the territory of Oklahoma, made a written contract with the Kansas Moline Plow Company, a corporation of the state of Illinois, to purchase of it certain agricultural implements for the sum of $1,223.21. The plow company agreed by the written contract to deliver these goods by way of Rock Island, to the defendants, marked with their firm name, at the plaintiff's warehouse in Kansas City, in the state of Missouri. It delivered the property but the defendants never paid for it. In an action for the price of the goods the trial court rendered a judgment for the plow company, that judgment was affirmed by the Court of Appeals of the Indian Territory, and the defendants sued out their writ of error to reverse the judgments.
The first specification of error is that the trial court unlawfully denied a motion to change the venue of the action. Section 3556 of the Annotated Statutes of the Indian Territory of 1899 provided that any party might obtain a change of venue, by a motion, upon a petition verified by him and supported by the affidavits of two credible persons, stating that he verily believed that he could not obtain a fair and impartial trial in the division in which the action was pending on account of undue prejudice against him, or his cause, or defense, in that division.
The contention of counsel for the defendants below is that the court violated this statute in the ruling of which complaint is here made. But this position is untenable, because no petition of the character prescribed by this statute was presented to that court. Nothing was filed but a verified motion, which contained no statement that the party who subscribed the oath beneath it verily believed that he could not obtain a fair and impartial trial in the division where the action was pending and the affidavits of two persons in support of this verified motion. The position of counsel is also untenable, because the testimony of the two supporting witnesses, which appears in the record, fails to convince that they were credible persons. It demonstrates that they were ignorant of the facts concerning which they testified and that they knew nothing about the prejudice which in their affidavits they stated that they believed existed. The motion to change the venue was rightly denied.
The trial court declined to permit the defendants to testify what season the implements were bought for, and what time the salesman of the plaintiff said, when he obtained the contract, would be required for the goods to reach Kansas City and Waurika, and whether or not they were all received in the first shipment. These rulings are challenged for the purpose of establishing the defense that the goods were not delivered in time; but the admission of the proffered testimony would have been fatal error, because the written contract expressly provided that the plaintiff should deliver the goods, via Rock Island, at Kansas City, at once; that the prices, terms, and implements were for the season ending July, 1903; and that the written contract contained all the agreements and conditions, verbal or otherwise, that should be recognized by either party. In view of this written agreement, it was immaterial when the goods arrived at Waurika, or whether or not they were received in one or more shipments, or what the representations or statements of the parties were in the negotiations at the time of the agreements; for no fraud was pleaded, and those representations were merged in the written contract.
The defendants claimed that a portion of the goods, for the price of which this action was commenced, were sold in the Indian Territory, and a portion in the territory of Oklahoma. Act Cong. Feb. 18, 1901, c. 379, 31 Stat. 794, 795, provided that, before any foreign corporation should begin to carry on business in the Indian Territory, it...
To continue reading
Request your trial
-
State v. W.T. Rawleigh Co.
... ... J ... Law, 281, 45 L. R. A. (N. S.) 538; John Deere Plow Co. v ... Agnew, 48 Can. S.Ct. 208, Ann. Cas. 1913E, 1145 and ... 917, where ... numerous cases to the same effect are reviewed. Bruner v ... Kansas Moline Plow Co., 168 F. 218, 93 C. C. A. 504; ... ...
-
C. I. T. Corp. v. Stuart
...Item Co. v. Shipp, 140 Miss. 699, 106 So. 437; 60 A. L. R. 996; 14A. C. J., page 1276, par. 3983, page 1278, par. 3984; Bruner v. Kansas Moline Plow Co., 168 F. 218. title to goods sold in another state is not "doing business" in that state within the meaning of the statute under considerat......
-
City of St. Louis to Use of Carroll-Porter Boiler & Tank Co. v. Parker-Washington Co.
...sec. 1025. Heating Co. v. Fixture Co., 60 Mo.App. 155; Woolen Mills v. Evans, 84 Mo.App. 450; Frick v. Marshall, 86 Mo.App. 472; Bruner v. Plow Co., 168 F. 218. Carroll-Porter Company at no time had or maintained any office in this State or employed any local agent in connection with the co......
-
Thomas v. Hudson Sales Corp.
...of process therein. People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 235, 62 L.Ed. 587; Bruner v. Kansas Moline Plow Co., 8 Cir., 168 F. 218; Id., 7 Ind. T. 506, 104 S.W. 816; Grove Lime Co. v. Wolfenden, 171 Md. 299, 188 A. 794, It appears that manufacturers of auto......