Creamery Package Mfg. Co. v. Cheyenne Ice Cream Co.

• Decision Date: 12 March 1940
• Docket Number: 2125
• Parties: CREAMERY PACKAGE MFG. CO. v. CHEYENNE ICE CREAM CO
• Court: Wyoming Supreme Court

100 P.2d 116

55 Wyo. 277

CREAMERY PACKAGE MFG. CO. v. CHEYENNE ICE CREAM CO

No. 2125

Supreme Court of Wyoming

March 12, 1940

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by the Creamery Package Manufacturing Company against the Cheyenne Ice Cream Company in replevin to recover possession of property sold by plaintiff to the defendant. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

For the appellant, there was a brief by George F. Guy and Philip White of Cheyenne, and oral argument by Mr. Guy.

The only question involved in this case is whether the plaintiff was a non-domesticated foreign corporation doing business in Wyoming, at the time of the execution of the contract on March 31, 1936. The trial court apparently found that plaintiff was doing business in the state without domestication and that defendant properly asserted that fact as a ground of defense. In these findings, we believe the trial court erred. Article X, Section 5 of the Constitution and Section 141 of Chapter 28, R. S. 1931, relate to the domestication of foreign corporations, who seek to do business in Wyoming. It is our contention that the sale and installation of refrigerators by plaintiff was an interstate transaction. The installation of refrigerators was a part of the interstate sale and delivery carried out and performed by experts sent into the state by plaintiff. Fire Extinguisher Company v. Northwestern Auto Supply Company, 211 P. 308; Mfg. Co. v. Talbot &amp Meier, 233 N.W. 437; Smilansky v. Mandel Bros. (Mich.) 236 N.W. 866. A case that is also parallel to the case at bar is Thresher Company v. Stohl (Utah) 283 P. 731, also the case of Cobb v. York Ice Machinery Corporation (Ala.) 159 So. 811; see also Linograph Company v. Logan (Ark.) 299 S.W. 609; Vilter Mfg Co. v. Evans (Ind.) 154 N.E. 677; Palmer v. Company, 46 F.2d 746; Webb v. Glass Company, 289 S.W. 260; Boss Company v. Tile Company (Minn.) 209 N.W. 876. Payments made by the defendant after the plaintiff's domestication as a foreign corporation, operated as a ratification of the original agreement of March 31, 1936, and was binding upon the defendant. The defendant relied upon the case of Gould Cattle Company v. Telephone Company, 17 Wyo. 507, and the case of Construction Company v. Canal Company, 31 Wyo. 191. We believe that these cases are readily distinguishable from the case at bar. Neither of them hold that the contracts involved were void. Plaintiff in the present case was domesticated in Wyoming and was authorized to enforce the contract. 14A C. J. 1296; Ilfeld Company v. U. P. R. R. Co., 23 F.2d 66; 14A C. J. 4012, p. 1307 and cases cited; Amusement Company v. Forrest Park Amusement Company, 90 S.W. 1020; Trust Company v. County Farms Company, 193 S.W. 69; Eastlick v. Lumber Company, 263 P. 936. On the question of ratification, we cite Traction Company v. Montgomery Light and Water Power Company, 229 F. 672, certiorari denied 61 L.Ed. 566; Turner Construction Company v. Union Terminal Company, 229 F. 702, certiorari denied 60 L.Ed. 1233. Definitions of the terms "void" and "voidable" appear in Volume 8, Words and Phrases, page 7332. The dismissal of plaintiff's petition was erroneous and the judgment below should be reversed, with directions.

For the respondent, there was a brief and oral argument by Vincent Carter of Cheyenne.

The case involves the interpretation of a conditional sales contract entered into by the parties on March 31, 1936. The state constitution and statutes imposed conditions upon foreign corporations desirous of doing business in Wyoming. Article X, Section 5, Constitution, Chapter 28, Section 141, R. S. 1931. It is made clear by the pleadings that plaintiff was doing business in Wyoming as a foreign corporation. Material allegations of new matter in the answer, not controverted by the reply, are to be taken as true. Chapter 89, Sec. 1026, R. S. 1931; Hammer v. Edwards, 3 Mont. 187; Lake v. Steinbach, 32 P. 767. A reply should not reassign or repeat the averments of the complaint. Conover v. Comm. (Ky.) 12 Am. Dec. 451; Insurance Company v. Dobney (Nebr.) 86 N.W. 1070. It is shown by the admitted facts in the pleadings, that plaintiff was not only selling and transporting the product which it manufactured, but was erecting and installing equipment, constructing buildings, and employing local labor in the state. This constituted doing business in the state. Fletcher Cyc. Corporations, Vol. 17, p. 466; Foster Company v. Koppel Equipment Company, 215 N.Y.S. 214; Comm. v. Wilkes-Barre & H. R. Co. (Pa.) 95 A. 915. The exact point has been decided in two decisions by this court--Gould Land & Cattle Company v. Rocky Mountain Bell Tel. Company (Wyo.) 101 P. 939, and Interstate Const. Co. v. Lakeview Canal Company (Wyo.) 224 P. 850. Bryan v. Bowser & Co., 209 S.W. 189; National Refrigerator Co. v. Southwest Missouri Light Company (Mo.) 231 S.W. 930; Refrigerating Mach. Co. v. Penn Heat & Power Co., 178 F. 696. The doctrine announced in the foregoing cases has been followed in the following cases: Browning v. City of Waycross, 233 U.S. 16; Signal Company v. Virginia ex rel. State Corporation Commission, 246 U.S. 500; Power Specialty Company v. Michigan Power Co. (Mich.) 157 N.W. 408; Vacuum Cleaner Company v. Bjornstad (Minn.) 161 N.W. 215; Smythe Company v. Fort Worth Glass & Sand Co. (Tex.) 142 S.W. 1157; J. H. Andrews Co. v. Colonial Theatre Co., 283 F. 471; Amusement Company v. Chutes Company (Ala.) 56 So. 961; U. S. Const. Co. v. Hamilton Nat. Bank (Ind.) 126 N.E. 866; Heating & Vent. Co. v. McKnight & Merz (Tenn.) 205 S.W. 419. Plaintiff's contention that it was engaged in interstate commerce is not sustained by the pleadings. Kent v. Tuttle (Mont.) 50 P. 559; Palm Cleaner Company v. Bjornstad, supra; Kinnear & Gager Mfg. Co. v. Miner, 96 A. 333. Payments made by defendant after plaintiff had domesticated in Wyoming were not a ratification of plaintiff's violation of the constitution and laws of the state, at the time the contract was made. Fletcher Cyc. Corporations, Sec. 8538. The authorities cited by plaintiff on the subject of ratification do not support its contentions. Tarr v. Western Loan & Savings Co. (Idaho) 99 P. 1049. Plaintiff attempts to invoke the doctrine of equitable estoppel, but his position is unsupported by the facts. Vogel v. Shaw, 42 Wyo. 333; Fletcher on Corporations, Vol. 17, p. 615; Fletcher on Corporations, Vol. 9, Sec. 1032.

The judgment of the trial court should be sustained.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

On March 31, 1936, the plaintiff, the Creamery Package Manufacturing Company, a corporation organized under the laws of Illinois and having a branch office at Denver, Colorado entered into a contract at Denver, Colorado, with the defendant, the Cheyenne Ice Cream Company, for the shipment to, and installation at, Cheyenne, Wyoming, of certain refrigerating equipment. This equipment, as stated in the contract, consisted of a super-freezer door, a cold storage door, and certain manufactured products consisting of a compressor, a refrigerating machine, a main shaft, flywheel weighing 480 pounds, ammonia condenser six feet long and fifteen inches wide, ammonia receiver, interceptor, gauges, ammonia pipe connections, electric motor of fifteen horsepower, automatic control devices, and other manufactured products. It further agreed to furnish "hardening room to be insulated with eight-inch corkboard in walls, floor and ceiling; anteroom, to be insulated with four-inch corkboard in walls and ceiling, with six-inch corkboard insulation in partition between hardening room and anteroom." The hardening room was to have an average temperature of 10 [degrees] below zero, and the anteroom an average temperature of plus 40 [degrees], the company to furnish the piping. In that connection it was stated that "the company will furnish piping for the circulation of ammonia in the rooms * * * all valves, fittings and hangers. The piping will be arranged in coils suitable for the purposes for which the rooms are intended. Valves will be placed where required for shutting off any coil or room. The company will furnish necessary connections between coils and balance of the system." The rooms were to contain "1075 ft. 1 1/4" shelf pipe coils for cooling the above room controlled by 1 -CP 8" x 24" Accumulator & float control for operating flooded system. Coils to be equipped with suction and liquid headers." The plaintiff agreed to furnish one erecting engineer to install the equipment furnished by it and to furnish and pay all other help necessary for the placing, connecting and starting the machinery in operation. The purchaser agreed to furnish all masonry and carpenter work of every description, foundation of all machinery, electrical wiring, suitable openings in the building for the admission of the machinery and openings in walls and partitions for pipelines, and all material necessary to the completion of the contract not specifically mentioned to be furnished by the plaintiff. It was agreed that the purchase price should be $ 3155.00 upon the following terms, namely: Cash with the order of $ 1865.00, the balance to be paid in fifteen equal monthly installments of $ 86.00 each, beginning June 5, 1936. It was agreed that if the purchaser should default at any time in the amounts due under the contract the seller should have the right to retake possession of the property. It was further agreed that "any part of this agreement contrary to the laws of the state in which it is written or executed or to be enforced shall not invalidate any other part of this agreement." The purchaser paid on the down payment the sum of $ 900 in April, 1936. It was entitled...