Coffin v. Smith

• Decision Date: 03 December 1910
• Citation: 128 N.W. 805,26 S.D. 536
• Parties: C. P. COFFIN, Plaintiff and respondent, v. EDGAR L. SMITH, Defendant and appellant.
• Court: South Dakota Supreme Court

26 S.D. 536, 128 N.W. 805 (1910)

C. P. COFFIN, Plaintiff and respondent v EDGAR L. SMITH, Defendant and appellant South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge Affirmed Aikens & Judge Attorneys for appellant. Davis, Lyon & Gates Attorneys for respondent. Opinion filed December 3, 1910

WHITING J.

This action was brought by the respondent, as assignee of the Illinois Steel Company, a foreign corporation, to recover the balance due on the purchase price of a lot of cement purchased by the appellant of such company. Trial was had before the court without a jury. Findings, conclusions and judgment were entered herein in favor of this respondent. A motion for new trial was denied, and appeal taken.

It is the contention of appellant that the transaction out of which the cause of action arose was one pertaining only to business within the state of South Dakota, and that, inasmuch as it is admitted that the Illinois Steel Company was a foreign corporation, and that it had never complied with the provisions of sections 883 to 885 of the Revised Civil Code of this state, such transaction was unlawful, and such corporation acquired no right of action based the thereon; and it is the further contention of appellant that the assignment was merely colorable, thus leaving respondent in no better position than the corporation would be if it had brought this action. We think the evidence clearly shows that this transaction did not pertain to business within this state. It clearly appears that the cement was purchased by means of written orders sent by appellant, to respondent at its offices in other states; that such orders were not taken by any agent of respondent in this state; that such orders were accepted and filled in the foreign states--the cement being shipped from points without this state. It is true that the cement was shipped "f.o.b." Sioux Falls, S. D., but we do not regard this as sufficient to render this a South Dakota transaction. Dannemiller v. Kirkpatrick, 201 Pa. 218, 50 Atl. 928; Coit & Co. v. Sutton, 102 Mich. 324, 60 N.W. 690, 25 L.R.A. 819; State v. Carl, 43 Ark. 353, 51 Am.Rep. 565; Flint v. McDonald, 21 S.D. 526, 114 N.W. 684, 14 L.R.A. (N.S.) 673, 130 Am.St.Rep. 735; Sucker State Drill Co. v. Wirtz Bros., 17 N.D. 313, 115 N.W. 844, 18 L.R.A. (N.S.) 134; Butler Bros. Shoe Co. v. U.S. Rubber Co., 156 Fed. 1, 84 C.C.A. 167.

Appellant insists that the evidence is not sufficient to prove that all the cement claimed to have been shipped by respondent's assignor was shipped by it. It appears that some of the cement was shipped from Minneapolis by another corporation. It, however, clearly appears that such Minneapolis corporation was the agent of respondent's assignor, and as such made the shipments.

Upon the...