Ex-Cell-O Corp. v. McKibbin

• Decision Date: 15 September 1943
• Docket Number: No. 27064.,27064.
• Citation: 383 Ill. 316,50 N.E.2d 505
• Parties: EX-CELL-O CORPORATION v. McKIBBIN, Director of Finance, et al.
• Court: Illinois Supreme Court

383 Ill. 316

50 N.E.2d 505

EX-CELL-O CORPORATION

v.McKIBBIN, Director of Finance, et al.

No. 27064.

Supreme Court of Illinois.

May 20, 1943.

Rehearing Denied Sept. 15, 1943.

Suit by the Ex-Cell-O Corporation against George B. McKibbin, Director of Finance, and others to test plaintiff's tax liability under the Retailers' Occupation Tax Act. An amended complaint was filed to which defendants filed a motion to strike, alleging that the pleading did not state a cause of action. The motion was sustained and a decree entered dismissing the amended complaint, and plaintiff appeals.

Reversed and remanded with directions.Appeal from Circuit Court, Sangamon County; Lawrence E. stone, judge.

Eckert & Peterson, of Chicago, and Gillespie, Burke & Gillespie, of Springfield (Owen Rall, of Chicago, and Louis F. Gillespie, of Springfield, of counsel), for appellant.

George F. Barrett, Atty. Gen. (Harry L. Arnold, of Rockford, of counsel), for appellees.

MURPHY, Justice.

The Ex-Cell-O Corporation instituted this suit in the circuit court of Sangamon county against the Director of Finance and the State Treasurer to test its tax liability under the Retailers' Occupation Tax Act and to protect its interests in money paid as taxes under the act, if it should be determined that no tax was due. It was alleged that, prior to the starting of the suit, plaintiff paid its taxes under protest for the months of April to December, 1940, both inclusive, and for January, 1941, making a total of $7,154.12. A temporary injunction was issued enjoining the State Treasurer from transferring the amount paid from the protest fund to some other fund. Thereafter an amended complaint was filed to which defendants filed a motion to strike, alleging that the pleading did not state a cause of action. The motion was sustained and a decree entered dismissing the amended complaint. The decree also contained a provision for holding the taxes paid or to be paid in status quo until the cause could be reviewed and the rights determined. Plaintiff appealed direct to this court.

The pertinent facts admitted by the motion are that plaintiff is a corporation organized under the laws of Michigan and is engaged in the manufacture and sale of machinery, machine parts, machine tools and other articles of a similar nature with its factory and place of business located at Detroit. Plaintiff never qualified to do business in this State as a foreign corporation and has no office, store, warehouse or bank account in this State. It sells some of its manufactured products to persons who reside in Illinois and who purchase the articles for use and consumption and not for resale and such portion of the business is the only part involved in this suit. It is alleged that the business upon which the Department claims a tax is due is transacted through what is commonly called ‘manufacturer's representatives.’ It is alleged plaintiff has three of these representatives, that they are corporations authorized to do business in Illinois and are actually engaged in business in this State. They will be referred to as representatives.

Each of these representatives entered into a written contract with plaintiff in which territorial area, representative's authority, its duties, commissions and other matters are set forth. It is stated that for the area described in the contract the representative named therein is the ‘sole representative for the sale of the’ products of the Ex-Cell-O company. It contained the following provisions: ‘Orders for goods received by the corporation (Ex-Cell-O) through or from the party of the second part (representative) or from customers within the territory of the party of the second part shall not be binding or firm orders until accepted in writing by the corporation; * * * The party of the second part (representative) shall not have authority to make any contracts or incur any liability on behalf of the corporation (Ex-Cell-O Company) the authority of the party of the second part being limited to the solicitation and forwarding of orders to the Ex-Cell-O Company subject in all cases to acceptance by it.’ It is also stated that ‘all orders shall be taken in the name of the corporation (Ex-Cell-O Company) which shall bill the purchaser on its own terms and carry such accounts in its own name. The corporation hereby reserves the right to accept or reject all orders received.’ It is also stipulated in the contract that the Ex-Cell-O company agreed to furnish to the representative, copies of all correspondence to customers or prospective customers within the territory described in such contract and to furnish printed price lists and quotations and all special details required. All samples, demonstration equipment, sales instructions, undistributed price lists and data sheets furnished the representative remained its property and were to be returned upon termination of the agreement. The contract provided for the payment of commissions upon the goods sold by the representative. The Ex-Cell-O company paid no part of the expenses incurred by the representative in soliciting orders. The contract was to run for one year from date subject to the right of the Ex-Cell-O company to change commissions, territory and prices. Provision was made for termination by either party on thirty days' notice. The representative agreed that it would not either directly or indirectly sell or offer for sale, or solicit orders...