C. I. T. Corp. v. Stuart

• Decision Date: 13 March 1939
• Docket Number: 33617
• Citation: 187 So. 204,185 Miss. 140
• Court: Mississippi Supreme Court
• Parties: C. I. T. CORPORATION v. STUART

187 So. 204

185 Miss. 140

C. I. T. CORPORATION v. STUART

No. 33617

Supreme Court of Mississippi, Division B

March 13, 1939

APPEAL from the circuit court of Carroll county HON. JOHN F. ALLEN Judge.

Replevin suit by the C. I. T. Corporation against W. H. Stuart, to recover possession of refrigerator. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

V. D Rowe & H. T. Holmes, of Winona, and J. L. Weitlauf, of Chicago, Ill., for appellant.

Contracts are made when and where accepted.

A contract is a rule considered as entered into at the place where the offer is accepted, or where last act necessary to complete it is performed.

13 C J. 580, par. 581; 1 A. L. I., Restatement, page 80, par. 74; Couret v. Conner, 118 Miss. 374, 79 So. 230; Schulze Baking Co. v. Goodson, 119 So. 353; Holder v. Aultman, 169 U.S. 81.

Contracts entered into in Mississippi and purchased and to be performed in foreign state is not "doing business" in Mississippi within the meaning of the statute under consideration.

14A C. J., page 1281, par. 3990, page 1283, par. 3991; 12 R. C. L. 72, sec. 50; Murfree, Foreign Corporations (Edition of 1893) par. 65; Clark on Corporations, page 774; North American Mortgage Co. v. Hudson, 176 Miss. 266, 168 So. 79; Dodds v. Pyramid Securities Co., Inc., 165 Miss. 269, 147 So. 328; George v. Smith, 250 F. 41; Allgeyer v. Louisiana, 165 U.S. 578; Reeves v. Harper, 9 So. 104; Davis & Worrell v. General Motors Acceptance Corp., 241 S.W. 44; State Mutual Fire Ins. Assn. v. Brinkley Stave & Heading Co., 61 Ark. 1, 31 S.W. 157, 29 L. R. A. 712, 54 Am. St. Rep. 191; Scruggs v. Scottish Mortgage Co., 54 Ark. 566, 16 S.W. 563; Bamberger v. Schoolfield, 160 U.S. 149, 16 S.Ct. 225, 40 L.Ed. 374; General Motors Acceptance Corporation v. Lund, 208 P. 502; Jones v. General Motors Acceptance Corporation, 265 S.W. 620; Commonwealth Farm Loan Co. v. Caudle's Admr., 203 Ky. 761, 263 S.W. 24; Hughes v. Campbell Coal Co., 201 Ky. 839, 258 S.W. 671; Pratt v. York, 197 Ky. 851, 248 S.W. 492; United Iron Works Co. v. Watterson Hotel Co., 182 Ky. 113, 206 S.W. 166; Ichenause & Co. v. Landrum, 153 Ky. 320, 155 S.W. 738; Commercial Investment Trust, Inc. v. Gaines, 136 S.E. 609; General Motors Acceptance Corporation v. Shadyside Coal, 135 S.E. 272; Gen. Motors Acc. Cor. v. Huron Finance Cor., 63 S.D. 579, 262 N.W. 195; Continental Trust Co. v. Tallahassee Falls Mfg. Co., 222 F. 694; Covey Cotton Oil Co. v. Bank of Ft. Gaines, 15 Ala.App. 529, 74 So. 87; Monaghan & Murphy Bank v. Davis, 234 P. 818; Robertson v. Southwestern Co., 136 Ark. 417, 206 S.W. 755; Coblentz & Logsdon v. Powell Co., 229 S.W. 25; Continental Assurance Co. v. Ihler, 26 P.2d 792; Service System, Inc. v. Johns, 221 S.W. 777; Colt Co. v. Watson, 247 S.W. 493; Dickerson, Inc. v. Levine, 119 A. 783; Gilmer Bros. Co. v. Singer, 149 N.Y.S. 904; McDowell v. Starobin Electrical Supply Co., Inc., 104 N.Y.Misc. 596, 172 N.Y.Supp. 221; Putney Shoe Co. v. Edwards, 60 Pa.Super.Ct. 338; Anglo-California Trust Co. v. Hall, 211 P. 991; Marz & Bensdorf, Inc. v. First Joint Stock Land Bank, 178 Miss. 204, 173 So. 297.

The controlling question is whether the contract sued on by appellant herein and the contracts accepted by appellant generally were bought in this state and were to be wholly performed within this state. The agreed statement of facts herein shows conclusively that the contract sued on herein and all contracts that were acquired by appellant were accepted and approved and bought and paid for by it at its offices outside of this state, and such contracts and the agreement to buy them were to be wholly performed outside of this state, and appellant respectfully submits that it is not doing business in Mississippi within the meaning of the statute under consideration.

Soliciting business in a state by a traveling representative is not "doing business" in that state within the meaning of the statute under consideration.

12 R. C. L. 52; Saxony Mills v. Wagner & Co., 94 Miss. 233, 47 So. 899; Mershon & Co. v. Pottsville Lbr. Co., 40 A. 1019; 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.

Retaining title to goods sold in another state is not "doing business" in that state within the meaning of the statute under consideration.

Underwood Typewriter Co. v. Piggott, 55 S.E. 664; Falls Rubber Co. v. La Fon et al., 256 S.W. 577; North American Mortgage Co. v. Hudson, 176 Miss. 266, 168 So. 79; Dodds v. Pyramid Securities Co., Inc., 165 Miss. 269, 147 So. 328; City Sales Agency, Inc. v. Smith, 126 Miss. 202, 88 So. 625.

Commercial notes are subjects of interstate commerce.

11 Am. Jur. 29, par. 29; Lottery case, 188 U.S. 321; Alabama & New Orleans Transp. Co. v. Doyle, 210 F. 173; Compton v. Allen, 216 F. 537; Bracey v. Darst, 218 F. 482.

Appellant's business is interstate commerce and is therefore without the purview of the statute under consideration, and if the statute applies to appellant's business it is unconstitutional as contravening the Commerce Clause of the Federal Constitution.

City Sales Agency, Inc. v. Smith, 126 Miss. 202, 88 So. 625; Union Cotton Oil Co. v. Patterson, 116 Miss. 802, 77 So. 795.

Mack L. Boykin, of Vaiden, for appellee.

The stipulation agreed to by the plaintiff and defendant in this case and the contract executed by L. S. Stuart and assumed by W. H. Stuart and the transcript from the justice of peace court are the only evidence relied upon by plaintiff to show that the C. I. T. Corporation is not doing business in the state of Mississippi, within the meaning of section 4140 of the Code of Mississippi of 1930. The contract of L. S. Stuart offered in evidence by plaintiff and the stipulations show that the plaintiff was engaged in the business of purchasing and collecting choses in action against in Mississippi. It also shows that said plaintiff does a fairly extensive business in this manner and form. The evidence also shows that these non-negotiable contracts are collectible by the plaintiff monthly over a period of three years, that plaintiff keeps its employees in local hotels in Mississippi for several days, and that plaintiff does a fairly extensive business as such, the evidence does not show that this is an isolated piece of business but shows that plaintiff does a fairly extensive business as described in the stipulation.

The defendant does not contend here that if negotiable notes were purchased out of the state of Mississippi, and that if collections of these notes were handled by remote control that plaintiff in this cause and appellant here would be doing business in the State of Mississippi within the meaning of Section 4140 of the Code of Mississippi of 1930. But appellee does contend here that only a small part of appellant's business is handled in other states, and the major part of its fairly extensive business is handled by collectors and employees of appellant living in hotels in Mississippi, and making these monthly collections for 36 months upon these contract makers, filing suits and employing counsel to prosecute them on this fairly extensive scale, that appellant is engaged in the state of Mississippi in the business of note collecting within the meaning of said section 4140 of the Mississippi Code of 1930, and has no right to bring this suit.

Quartette Music Co. v. Haygood, 108 Miss. 755; Peterman Const. & Supply Co. v. Blumenfeld, 156 Miss. 55; Wiley Electric Co. v. Electric Storage Battery Co., 167 Miss. 842; Levy & Sons v. Jeffords, 105 So. 1; Clarksdale Agency v. Cole, 87 Miss. 637; Marx & Bensdorf, Inc. v. First Joint Stock Land Bank, 173 So. 297.

Argued orally by H. T. Holmes, for appellant.

OPINION

Ethridge, P. J.

The C. I. T. Corporation is a foreign corporation, and has no office or place of business in the state of Mississippi. It engages in buying trade acceptances, conditional contracts, and other financial paper from dealers and others taking such contracts, the said purchases being accepted either at its office in Memphis, Tennessee, New Orleans, Louisiana, or Chicago, Illinois. It sometimes sends its agents into the state for the purpose of soliciting such contracts from dealers, merchants or others taking such contracts; but these agents do not accept such contracts, but merely transmit them to the offices above mentioned for acceptance or rejection. This C. I. T. Corporation has never filed with the Secretary of State the appointment of the local agents, upon whom process may be served, and has not done business in the state except in the manner above indicated.

The Neal Furniture Company, of Winona, sold to L. S. Stuart, of Vaiden, Mississippi, on the third day of July, 1936, a refrigerator, making a cash payment of $ 31.50, with an...