D.M. Ferry & Co. v. Smith

• Citation: 36 Idaho 67,209 P. 1066
• Court: United States State Supreme Court of Idaho
• Decision Date: 15 April 1922
• Parties: D. M. FERRY & COMPANY, a Michigan Corporation, Respondent, v. FRANK C. SMITH, Appellant

209 P. 1066

36 Idaho 67

D. M. FERRY & COMPANY, a Michigan Corporation, Respondent, v. FRANK C. SMITH, Appellant

Supreme Court of Idaho

April 15, 1922

CONTRACTS-CONSTRUCTION OF-INTENTION OF PARTIES-SEED CONTRACT-BAILMENTS-TITLE TO CROP-FOREIGN CORPORATIONS-ACTIONS BY, TO PROTECT PROPERTY-CLAIM AND DELIVERY-ACTION NOT BASED ON BREACH OR VIOLATION OF CONTRACT.

1. A contract is to be construed so as to give effect to the intention of the parties making it.

2. A contract wherein one person agrees to raise a crop of beans from seed furnished by a seed company, providing that the seed and seed crop produced from it should remain the property of the company, that in case the company should refuse to accept the crop for reasons stated title thereto should vest in the grower, and that the latter should receive as full compensation for his services four and one-quarter cents per pound for all seed in excess of the stock seed furnished him when delivered under the contract and accepted by the company, held, a contract of bailment and that the company was the owner of the crop.

3. C S., sec. 4775, has no applicability to an action by a foreign corporation to protect its property lawfully acquired, and such corporation, which has not complied with the provisions of C. S., secs. 4772 and 4773, may sue in the courts of this state to recover possession of personal property, where the suit is not based upon a breach or violation of a contract made in its name or for its use or benefit.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. William A. Babcock, Judge.

Action in claim and delivery. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

E. M Wolfe, J. F. Martin and L. A. Wade, for Appellant.

Title to property which is not in existence cannot be reserved from the ownership of seed from which it is expected to be grown, and a contract which attempts to do this is executory. (Robinson v. Stricklin, 73 Neb. 242, 102 N.W. 479; Welter v. Hill, 65 Minn. 273, 68 N.W. 26; Farmers Nat. Bank v. Coyner, 44 Ind.App. 335, 88 N.E. 856; Barber v. Andrews, 29 R. I. 51, 69 A. 1, 26 L. R. A., N. S., 30; Flynn v. Dougherty, 91 Cal. 669, 27 P. 1080, 14 L. R. A. 230; La Vie v. Toose, 46 Ore. 206, 79 P. 413; Sedgwick City Bank v. Pollard, 8 Kan. App. 34, 54 P. 14; Sexton v. Breshears, 21 Idaho 333, 121 P. 567; Mark P. Miller Milling Co. v. Butterfield-Elder Implement Co., 32 Idaho 265, 181 P. 703; Gilbert v. Coakland, 22 Ga. 753.)

Plaintiff cannot maintain an action which will indirectly enforce a contract, entered into while plaintiff was doing business in this state without having complied with the laws thereof. (C. S., sec. 4775; Katz v. Herrick, 12 Idaho 1, 86 P. 873; War Eagle Min. Co. v. Dickie, 14 Idaho 534, 94 P. 1034; Junction Placer Min. Co. v. Reed, 28 Idaho 219, 153 P. 564.)

A contract of this nature comes within the purview of this statute. (Bonham Nat. Bank v. Grimes, 18 Idaho 629, 111 P. 1078; 9 Fletcher's Cyc. Corporations, 10,081, sec. 5960; Citizens' Nat. Bank v. Buckhert, 14 Ala. App. 511, 71 So. 82.)

Sweeley & Sweeley, for Respondent.

This is a contract of bailment and Norris became under it merely a bailee for the purposes therein set forth. (D. M. Ferry & Co. v. Forquer, 61 Mont. 336, 202 P. 193.)

As the respondent is not seeking in this action to enforce a contract against the appellant the question of whether it was "doing business" or not is immaterial. (War Eagle Con. Min. Co. v. Dickie, 14 Idaho 534, 94 P. 1034; Bettilyon Homebuilders Co. v. Philbrick, 31 Idaho 724, 175 P. 958.)

"The provisions of our laws respecting foreign corporations and their designations of agents are applicable only to actions brought for the enforcement of contracts and have no application whatever to actions such as this brought by a foreign corporation to protect its own property." (Junction Placer Min. Co. v. Reed, 28 Idaho 219, 153 P. 564.)

No one has a right to take property away from a foreign corporation even if the property has been acquired in the transaction of business by the corporation without first complying with the laws of the state where the property is situated. (St. Louis A. & T. Ry. Co. v. Fire Assn., 60 Ark. 225, 30 S.W. 350, 28 L. R. A. 83.)

The statute does not prohibit a foreign corporation from suing to protect personal property within the state. (Craig v. Leschen Rope Co., 38 Colo. 115, 87 P. 1143.)

A foreign corporation may maintain an action of replevin to recover its personal property from one who has no contract relations with it and so has no standing to object to its doing business within the state without having complied with the statutes. (Duroth Mfg. Co. v. Canfield, 243 Pa. 24, 89 A. 798; Emerson v. McCormick Machine Co., 51 Mich. 1, 16 N.W. 182.)

BUDGE, J. McCarthy, Lee, JJ., and Dunn, JJ., concurring.

OPINION

BUDGE, J.

This is an action in claim and delivery, brought by respondent to recover possession of about 5,045 pounds of seed beans.

The facts were stipulated in the trial court. Since prior to September 15, 1915, appellant has been the owner of the S 1/2 NE. 1/4 of sec. 6, T. 11 S., R. 17 E., B. M., in Twin Falls county, on which date he leased in writing said premises to one R. A. Norris, for the term beginning October 1, 1915, and ending October 1, 1916. The lease provides that:

". . . . and the said second party (Norris), in consideration of the leasing of the above premises, hereby covenants and agrees with the said party of the first part (appellant) to pay the said party of the first part as rent for the same as follows, to wit: one-half of all the crop or crops . . . . grown on the above-mentioned land. Party of the second part is to deliver the first party's share of the crop in Twin Falls, Idaho, as soon as the same has been threshed . . . ."

Norris took possession of the premises under the lease, and about April 1, 1916, made a written offer to respondent, as follows:

"Twin Falls, P. O., Idaho State,

"April , 1916.

"Messrs D. M. Ferry & Co.

"Detroit, Michigan.

"I agree, on the terms and conditions stated below, to raise for you, on lands of suitable quality and condition, located in Section 6, Township of 11-17 East, County of Twin Falls, and State of Idaho, and deliver to you at Twin Falls, the following seeds, 12 acres beans, Black Valentine (12 bushels seed).

"I agree properly to prepare and plant such lands with stock seed to be furnished by you free on board cars at Twin Falls, Idaho, properly to cultivate and care for the crop, to harvest, cure, separate and clean, as well as possible with ordinary farm machinery, its entire seed product, in such manner as to secure the greatest return of seed suitable for seedman's use; and to sack and deliver all the seed to you free on board cars at Twin Falls, Idaho, as soon as the seed can be put in suitable condition, and before November 30th, 1916, without wasting, feeding, selling, reserving or allowing any portion of the crop or seed furnished to pass from my possession except as delivered to you. The stock seed and seed crop produced from it is, and shall remain your property except as otherwise stated in this contract.

"In order to prevent hybridization and to keep the crop pure, I agree that during the life of this contract I will not grow seeds of the same species for any other person, and as far as I am able to prevent it, there shall be no other plants of the same species grown within ten rods of this crop. I will take at all times every reasonable precaution to keep the crop pure and to prevent seed of any chance plants of a different variety or of a stock of the same variety different from that sent me by you, becoming mixed with seeds grown under this agreement. You or your agents may at any time enter the field and at your own expense make such examinations, selections or rejections as you or they deem desirable for the betterment of the crop for seed purposes, and you or they shall not be liable for necessary damage, if any, to my crop resulting from such work.

"You are carefully to weigh and test the crop upon its delivery. Any remilling is to be done by you at your expense. You may refuse to accept the crop if less than eighty-five per cent (85%) of the seeds are vital, or if in your judgment the crop is in any other respect unfit for seedmen's use and cannot be made fit without an unreasonable amount of cleaning or hand picking. In case of dispute as to vitality, it is agreed that a sample of the seeds may be submitted to the United States Department of Agriculture for testing, and the report of the Department of Agriculture on the sample submitted shall be final and binding on both of us. The sample shall be taken from the seeds as they stand in your warehouse, by drawing a sample from each sack, then thoroughly mixing the same, and taking a sample from the mixture, which shall be sent by the ordinary course of mail or otherwise to the Department of Agriculture at Washington, D. C. In case you refuse to accept the crop, its title shall vest in me and I agree to reimburse you immediately for stock seed and bags furnished, and for all freight charges paid by you on such rejected crop. If, within 60 days after you mail me Notice of Refusal to accept the seeds, you do not receive directions from me as to their disposition, you may dispose of them as you wish.

"In consideration of the faithful carrying out of this agreement by me and as full compensation for my services, you are to pay me at the rate of (4 1/4) four and one-fourth cents per pound for all seed in excess of the stock...