Int'l Text-Book Co. v. Peterson

• Decision Date: 05 November 1907
• Citation: 133 Wis. 302,113 N.W. 730
• Parties: INTERNATIONAL TEXT-BOOK CO. v. PETERSON.
• Court: Wisconsin Supreme Court

133 Wis. 302

113 N.W. 730

INTERNATIONAL TEXT-BOOK CO.

v.PETERSON.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Action by the International Text-Book Company against Carl Peterson. Judgment for defendant, and plaintiff appeals. Affirmed.

Dodge, J., dissenting.

It is established by the findings of fact of the trial court: That the plaintiff, a Pennsylvania corporation, domiciled at Scranton, in said state, is the owner and proprietor of the International Correspondence Schools, and its business is that of furnishing instruction by correspondence to those who enter into contract with it for that purpose. It never complied with the requirements of section 1770b, St. 1898, as amended. It contracted with the defendant upon contract blanks furnished by plaintiff taking the form of a request by the defendant to the plaintiff to furnish defendant with a course of correspondence instruction in its school in the subjects embraced in the “Chemistry and Manufacture of Leather” scholarship, and with the copyrighted instruction papers, examination questions, and drawing plates prepared by plaintiff for said scholarship. The defendant agreed not to permit any person who was not a holder of the same scholarship to study from any of the copyrighted instruction papers, examination questions, keys, drawing plates, etc., that might be furnished him under this contract, and agreed to pay the plaintiff for said course of correspondence instruction, and instruction papers, examination questions, and drawing plates, the sum of $96.30 in installments, viz., $5 at the time of signing the contract, and $5 each and every month thereafter until said price was paid in full. That this price included all charges for instruction in all subjects of the course for which the contract calls until defendant was qualified to receive a diploma or certificate of proficiency provided defendant completed the course within five years from the date of contract. A complete set of the instruction papers and examination questions in pamphlet form, and drawing plates used in teaching, was to be furnished to the defendant in parts as he proceeded with his study; the plaintiff to have the right to terminate the contract for any breach thereof on the part of the defendant without returning any money paid on account of the same. That on receipt of the full price of said scholarship, or upon receipt of such lesser amount as plaintiff's rules stipulated must be paid upon said scholarship, plaintiff was to loan to defendant certain bound volumes of instruction papers, examination questions, dawing plates, and keys or outfit belonging to said course of instruction for defendant's use so long as defendant should comply with the terms of the contract. Defendant, in case he failed to comply with the terms of the contract, was, upon demand, to return to plaintiff said bound volumes or outfit at defendant's expense and in good condition, provided, however, that after defendant had paid the full price he was not to be responsible in case said bound volumes or outfit was lost, destroyed, or damaged in any way. On March 18, 1905, the defendant delivered this form of application, signed by him, to the plaintiff's agent in Wisconsin. The agent, who was apparently engaged in soliciting and forwarding such propositions, thereupon transmitted the same to the plaintiff at Scranton, Pa., and at that city on March 24, 1905, the plaintiff accepted the application of the defendant and notified defendant in writing of such acceptance. The plaintiff from its office at Scranton, Pa., forwarded to the defendant at Manitowoc, Wis., by mail, the first set of copyrighted instruction papers, examination questions, and drawing plates, and the set of bound volumes loaned to the defendant, all of which were received by the defendant at Manitowoc, Wis. The plaintiff has been in readiness to perform ever since, but about three months after making said application the defendant refused to make further payments and committed a breach of the contract.

The mode in which the contract was expected to be carried out was found by the court below as follows: “That the plaintiff was to send to the defendant by mail or express from Scranton, Pa., to Manitowoc, Wis., a first set of instruction papers, examination questions, and drawing plates pertaining to a course of instruction in the chemistry and manufacture of leather scholarship; that defendant on receipt of these was to study the same, write out his work, and forward it to the plaintiff at Scranton, Pa., by mail, together with such questions or inquiries as he might need to make relative to the work; that the plaintiff by its instructors, teachers, and correspondence clerks would thereupon correct the work of the defendant upon its receipt at Scranton, Pa., and return it to the defendant at Manitowoc, Wis., by mail, together with answers to his questions or inquiries, and together with a further set of copyrighted instruction papers, examination questions, and drawing plates; that defendant was thereupon to take up this second set of papers, work upon them as before, and return his work to Scranton, Pa., in the manner above described, for correction; that this process was to continue until defendant had received from plaintiff all the copyrighted instruction papers, examination questions, and drawing plates contracted for by defendant's accepted application above described; that, at the time the first set of copyrighted instruction papers, examination questions, and drawing plates were to be sent by the plaintiff to the defendant, the plaintiff was also to send to the defendant a set of bound volumes, the title thereto remaining in plaintiff, to be loaned to the defendant during such time as he made no default on his contract obligations.” The court below held that the transactions above detailed between plaintiff and defendant did not come within the description of interstate commerce, and were in violation of section 1770b, St. 1898, as amended by section 27, c. 351, p. 653, Laws 1899, and chapter 434, p. 620, Laws 1901.

Nash & Nash, for appellant.

A. P. Schenian, for respondent.

TIMLIN, J. (after stating the facts as above).

Aside from the question of interstate...