Dr. Koch Vegetable Tea Co. v. Shumann

• Decision Date: 28 February 1914
• Citation: 139 P. 1133,42 Okla. 60
• Parties: DR. KOCH VEGETABLE TEA CO. v. SHUMANN ET AL. [d1]
• Court: Oklahoma Supreme Court

139 P. 1133

42 Okla. 60

DR. KOCH VEGETABLE TEA CO. v. SHUMANN ET AL. ^[d1]

Supreme Court of Oklahoma

February 28, 1914

Syllabus by the Court.

A nonresident corporation, engaged in the manufacture and sale of certain proprietary medicines, entered into a written contract with a resident of Oklahoma, whereby it was agreed that certain of its products should be "sold and delivered f. o. b." at a point outside of the state, and should be shipped into Oklahoma and resold at retail. Held, this did not constitute "transacting business" in the state, within the provisions of section 1335, nor incur the penalty prescribed in section 1338, Rev Laws 1910.

Such nonresident corporation, being engaged in interstate commerce, was not denied the right of suing in the courts of Oklahoma to enforce its contract, although it had not procured a license or permit to do business in the state of Oklahoma.

Commissioners' Opinion, Division No. 2. Error from Superior Court, Oklahoma County; Ed De Wies Oldfield, Judge.

Action by the Dr. Koch Vegetable Tea Company against M. W. Shumann M. L. Feary, and David Sowers. Judgment was for the defendants Feary and Sowers. Plaintiff brings error. Reversed and remanded, with directions.

Carlisle & Edwards, of Oklahoma City, for plaintiff in error.

Asp Snyder, Owen & Lybrand, of Oklahoma City, and Devereux & Hildreth, of Guthrie, for defendants in error.

GALBRAITH C.

This action was commenced by Dr. Koch Vegetable Tea Company, a Minnesota corporation, to recover an amount alleged to be due for goods, wares, and merchandise sold and delivered to M. W Shumann under a written contract, and to recover against M. L. Feary and David Sowers on a written contract of guaranty for the faithful performance of such contract. The principal debtor made default, and judgment was entered against him for the amount claimed. The sureties filed separate answers, consisting of a general denial and special defenses to the effect that the plaintiff was a foreign corporation, engaged in business for profit, and had not complied with the statutes of Oklahoma by filing a copy of its charter and articles of incorporation, and had not appointed a service agent in the state, and also that the plaintiff had failed to comply with the Constitution of the state, prohibiting foreign corporations from doing business in the state without first having obtained a license so to do, and for these reasons the plaintiff could not maintain its action in the courts of this state. A reply was filed which amounted to a general denial. The case was tried upon a stipulation to the effect that, if the special defenses set up in the answers of the defendants Feary and Sowers were not good, the plaintiff was entitled to judgment in the amount set out in its petition. The trial court found that the special defenses were good, and that the plaintiff could not maintain its action against these defendants on their guaranty contract, and rendered judgment against the plaintiff and in favor of these defendants for costs. From the order overruling the motion for new trial, the company perfected an appeal to this court.

Under the terms of the written contract attached to plaintiff's petition, the plaintiff agreed to sell and deliver to Shumann certain medicines at prices agreed upon f. o. b. Winona Minn., and Shumann agreed to sell the goods in a certain designated territory in Oklahoma. It does not appear where the contract was entered into,...