City Sales Agency, Inc. v. Smith

• Decision Date: 01 March 1921
• Docket Number: 21874
• Citation: 126 Miss. 202,88 So. 625
• Court: Mississippi Supreme Court
• Parties: CITY SALES AGENCY, INC., v. SMITH

88 So. 625

126 Miss. 202

CITY SALES AGENCY, INC., v. SMITH

No. 21874

Supreme Court of Mississippi

March 1, 1921

Appeal from chancery court of Simpson county, HON. D. M. RUSSELL Chancellor.

Suit by the City Sales Agency, Incorporated, against W. F. Smith, Jr. Decree for defendant, and complainant appeals. Reversed and remanded.

Decree reversed and cause remanded.

Tally &amp Bayson, for appellant.

Counsel for appellee takes the same position in this court that he did in the court below. That appellant was doing business in the state of Mississippi in violation of its laws; he overlooks the fact that the status of the contract is determined by the initial order for the purchase of the trucks. The order was signed by the appellant, while it does not show on its face where it was signed, the testimony shows that it was signed at Magee, Mississippi, and is addressed to "City Auto Sales Agency Inc., town New Orleans La." The order had to be forwarded to the seller at New Orleans and accepted before the property was shipped out. It occurs to us that this was an interstate transaction and since that is true, the power to regulate commerce between the states is vested by the Federal constitution in Congress and not in the chancery courts of the several states.

"Sales made by agents or traveling men of foreign corporations having no office or place of business in the local state, and which orders are sent to the home office to be approved and filed, are interstate commerce, and the state may not impose any conditions on this business by way of exacting license fees or otherwise. "5 Thompson on Corporation, section 6641 and Vol. 8, section 6641. The testimony of Mr. Dryfus the general manager of the appellant corporation conclusively shows that no sales are made until the order is sent in by the salesmen to the New Orleans house and there accepted.

The mere fact that the purchaser was not able to pay cash and the seller gave him indulgence by deferring part of the payment in no sense changes the character of the transaction. The sale is complete when the order is accepted and the signing of the notes, and the execution of the deeds of trust at Magee to secure the same in no sense changes the character of the transaction.

R. C. Russell, for appellee.

Appellant is a foreign corporation and as such had not qualified to do business under the laws of the state of Mississippi as provided by section 935, Code 1906, Hemingway's Code, sec. 4111, and chapter 92 of the legislature of 1916, and this fact being admitted, there is, therefore, but one question presented by this record and that is, was appellant engaged in business in this state within the meaning of the statute when it sold and delivered appellee the trucks in question, and he in turn executed and delivered the notes and contracts therefor?

Appellant contends that it was not doing business in the state when it sold the trucks in question as contemplated by said statute, because it says the appellee signed an order and that order was approved in New Orleans and that this was the contract for the sale and purchase of the truck. This contention in untenable, because the suit is not based upon this order, it is nowhere referred to, it was not even made an exhibit to the bill of complaint but the entire suit is based solely upon the six notes and the two contracts that are made exhibits to the bill and these notes and contracts show on their face that they were made and executed at Magee, Simpson County, Mississippi, and these instruments are the evidence of this contract, and not this order. The fact that appellant had the notes and contracts executed refute every inference that it regarded this order as the contract.

Appellant's own testimony of A. C. Dreyfus from pages 31 to 42 and J. W. Baker from 65 to 80, establishes beyond the peradventure of a doubt that this contract was made at Magee, Mississippi. Mr. Baker, the acting agent for appellant, stated in his testimony that he had failed to close the deal with appellee and that Mr. Dreyfus had to come and complete the sale himself, and we submit that this one transaction was the doing of business by appellant in this state, as it was done in the usual and ordinary course of transacting the business for which it was organized.

A single transaction is sufficient to constitute the doing of business as contemplated by our statute as was held in the case of the John Deer Plow Co. v. Spatz, 69 Kan. 255, 2 Am. Eng. Ann. Cases, page 304, in which the court say, Therefore although a single act, it constituted a doing of business in the state within the meaning of the statute, there are many other cases collated in the footnote of this case. Again it is held by the supreme court of Alabama in the State v. Bristol Saving Bank, 108 Ala. 3, 54 Am. St. Rep. 141, that a foreign corporation is guilty of doing business within the state if it makes a single loan to a resident thereof, and takes therefor promissory notes secured by a deed of trust upon real property situated within the state, though such notes are payable in the state wherein the corporation has a residence.

The contract was for the sale of automobile trucks the very thing and the very business for which appellant company was organized and engaged in at the time of making the contract here sued on, and the contract for the sale of these trucks to appellee was as much of its business, as it would have been, if the contract had been made in New Orleans. It was just as much, the doing business in Mississippi, as it would have been if a hundred such contracts had been made.

The taking of the order does not change the rule, or make it a Louisiana contract, because appellant does not rely on this order, and furthermore the order provides that these trucks are to be delivered at Magee, Mississippi. So this order, if it can be considered for anything or given any consideration whatever it will have to be considered a part of the whole contract. In other words appell...