Case v. Mills Novelty Co

• Decision Date: 12 February 1940
• Docket Number: 34018
• Citation: 193 So. 625,187 Miss. 673
• Court: Mississippi Supreme Court
• Parties: CASE v. MILLS NOVELTY CO

193 So. 625

187 Miss. 673

CASE v. MILLS NOVELTY CO

No. 34018

Supreme Court of Mississippi, Division A

February 12, 1940

Suggestion Of Error Overruled March 11, 1940.

APPEAL from the circuit court of Wayne county HON. ARTHUR G. BUSBY Judge.

Action of replevin by the Mills Novelty Company against A. B. Case. From an adverse judgment, defendant appeals. Reversed, and action dismissed.

Reversed, and judgment dismissing action.

M. L Heidelberg, of Waynesboro, for appellant.

The contention of the defendant below, the appellant here, is that the service agreement and the service performed by the Refrigeration Shop of Laurel, and Mr. Harvey Bishop, its owner, as per his contract with the Mills Novelty Co., was doing business in the State of Mississippi, and was something separate and apart from the sale and shipment of the ice cream dispenser from Chicago, Illinois, to Waynesboro, Mississippi, and takes the contract with Florence M. Cran and J. W. Cran, Jr. out from the protection of the Interstate Commerce law, as construed by the courts.

Buffalo Refrigeration Machine Co. v. Penn Heat, etc., Co., 178 F. 696, 102 C. C. A. 196; George M. Muller Mfg. Co. v. Dothan National Bank, 176 Ala. 229, 57 So. 762; The Nerst Lamp Co. v. Conrad, 165 Mich. 604, 131 N.W. 120; The Imperial Curtain Co. v. Jacob, 163 Mich. 72, 127 N.W. 772; Bohler v. E. T. Burrowes Co., 171 S.W. 791; 14-A C. J. 1286, par. 2993.

A corporation in the performance of their contracts and agreements must act by and through flesh and blood, natural human being, and Bishop was the one in this instance that the Mills Novelty Co. used to carry out and perform their contract with Florence M. Cran and J. W. Cran, Jr., and this contract and work was wholly performed within the State of Mississippi, without having first complied with sections 4140, 4164 and 4217 of the Code of Mississippi, for the year 1930.

Arthur G. Busby, Jr., of Meridian, for appellee.

The only point involved in this appeal is whether the appellee was doing business in the State of Mississippi, under the statute, or whether the sale made on the conditional sales contract was a sale protected by the interstate commerce laws and the federal constitution.

It has been our contention throughout the entire proceeding of this cause that the sale made was such a sale as would be protected by the interstate commerce laws. The proof shows that the sale was made by a soliciting agent, who had the Crans sign the contract which was then sent to our home office for acceptance. The equipment was then sent or shipped to the vendees in Waynesboro, Mississippi, directly from the home office in Chicago.

Saxony Mills v. Wagner et al., 47 So. 899, 94 Miss. 233; City Sales Agent, Inc., v. Smith, 88 So. 625, 126 Miss. 195; Item Co., Limited, v. Shipp et al., 106 So. 437, 140 Miss. 699; North American Mortgage Co. v. Hudson, 168 So. 79, 176 Miss. 266; C. I. T. Corporation v. Stewart, 187 So. 204.

It is our contention that this sale was an interstate transaction and that the service agreement was incidental and necessary to the transaction or sale.

York Mfg. Co. v. Colley et al., 247 U.S. 21, 38 S.Ct. 430, 11 A.L.R. 611; Metal Door and Trim Co. v. Hunt et al., 170 Okla. 240, 101 A.L.R. 350; North v. Mergenthaler Linotype Co. (Tex.), 75 S.W.2d 580; Huston Canning Co. v. Va. Can. Co., 211 Ala. 232, 100 So. 104, 35 A.L.R. 912; Cobb v. York Ice Machinery Corp. (Ala.) 159 So. 811; Aeolian Co. v. Fisher, 40 F.2d 189; Palmer v. Aeolian Co. (Iowa), 46 F.2d 746, 51 S.Ct. 560; Vilter Mfg. Co. v. Evans (Ind.), 154 N.E. 677; Moline Furniture Co. v. Club Holding Co. (Mich.), 274 N.W. 338; J. C. Boss Engineering Co. v. Gunderson Brick & Tile Co. (Minn.), 209 N.W. 876; General Fire Extinguisher Co. v. Northwestern Auto Supply Co. (Mont.), 211 P. 308; Johnston v. Lamson Co., Inc. (Va.), 167 S.E. 417; General Talking Pictures Co. v. Shea, 49 S.W.2d 359, 185 Ark. 777.

OPINION

Smith, C. J.

The appellee, a corporation, doing business in Chicago, Illinois, accepted a written order in Chicago from Florence M. Cran for the sale to her of an ice cream dispenser and shipped the dispenser to her at Waynesboro, Mississippi, which she accepted and proceeded to use. The greater part of the price of the dispenser was to be paid in twenty-four consecutive monthly installments, to cover which Mrs. Cran executed promissory notes. To secure the payment of these notes, title to the dispenser was to remain in Mills Novelty Company until all of the notes were paid. The dispenser came into the possession of the appellant, and the promissory notes given therefor, but by Mrs. Cran not being paid, this action of replevin was brought by the Mills Novelty Company for the possession of the dispenser. Section 4164, Code of 1930, requires a foreign corporation doing business in this State to file a copy of its charter with the Secretary of State and in default thereof it "shall be liable to a fine of not less than $ 100.00." The appellee has not filed its charter with the Secretary of State, and the appellant's defense in the court below was and here is that the sale of this ice cream dispenser to Mrs. Cran was an intra and not an interstate transaction, and consequently constituted the doing by the appellee of business in this State and the commission of a crime under Section 4164, because of which the contract for the sale of the dispenser is void. If the sale of this ice cream dispenser was an intrastate transaction, then the contract by which the sale was made is void. Quartette Music Company v. Haygood, 108 Miss. 755, 67 So. 211.

The contract of sale contains this agreement:

"The Mills Novelty Company agrees to service for the original...