J. R. Watkins Co. v. Stanford

• Decision Date: 30 April 1951
• Docket Number: No. 3378-9,3378-9
• Citation: 52 So.2d 325
• Parties: J. R. WATKINS CO. v. STANFORD et al. J. R. WATKINS CO. v. CARMOUCHE et al.
• Court: Court of Appeal of Louisiana — District of US

Page 325

52 So.2d 325

J. R. WATKINS CO. v. STANFORD et al.

J. R. WATKINS CO. v. CARMOUCHE et al.

No. 3378-9.

Court of Appeal of Louisiana, First Circuit.

April 30, 1951.

John G. Gibbs, Natchitoches, Seth Lewis, Opelousas, for appellant.

Tate & Fusilier, Ville Platte, Leon S. Haas, Jr., Opelousas, Atlee P. Steckler, Ville Platte, A. V. Pavy, Opelousas, for appellees.

DORE, Judge.

In these consolidated cases, J. R. Watkins Company seeks judgments against the respective principal defendants and their sureties for the alleged balance due on merchandise sold to the respective principal defendants, allegedly per contracts, copies of which were annexed to the petitions.

Defendants filed exceptions, first, of lack of procedural capacity; second, of vagueness; and third, of no right or cause of action.

A trial on the exception of lack of procedural capacity was held, and the trial judge maintained the exception and dismissed the suits. Plaintiff has appealed.

The exception is based on the proposition that plaintiff, a Delaware corporation, is a foreign corporation actually doing business through its agents or employees in the State of Louisiana without having been authorized or licensed to do so, and is therefore barred from prosecuting the suits under the provisions of Act No. 8 of the Third Extra Session of 1935, See Title 12:211, LSA-Revised Statutes of 1950.

Section 1 of said Act provides: 'no foreign corporation doing business in this State shall be permitted to present any judicial demand before any court of this State, unless and until it has complied with the laws of this State for doing business herein, and unless and until it has paid all taxes, excises and licenses due to the State, provided that nothing in this act shall be construed to prevent the bringing of a cause of action against any such foreign corporation.'

Section 2 of said Act further provides: 'The burden of proof shall rest upon such foreign corporation to establish that it has complied with the laws of this State for doing business herein * * *.'

The plaintiff contends that it is not doing business within the State of Louisiana; that therefore the provisions of said Act do not apply to it; and that hence it may sue in the Courts of this State for whatever sums are alleged to be due to it on the contracts involved in these suits. Plaintiff corporation maintains that the relationship between it and the main defendants is that of vendor and vendee of merchandise. It further contends that it has no capital invested in the State; that it has not nor does it maintain in any manner a store, warehouse, or any kind of establishment in the State; that the contracts were signed in Minnesota, and the merchandise purchased by the principal defendants was all shipped from either Tennessee or Minnesota, thus making such shipments interstate commerce.

It is admitted that the plaintiff, a Delaware corporation, is not now authorized to do business in this State.

The question of whether or not plaintiff is doing business within this State is purely a factual one and must be determined from all of plaintiff's activities and transactions, either directly or through socalled 'dealers', agents, employees, or supervisors. R. J. Brown Co. v. Grosjean, 189 La. 778, 180 So. 634; Proctor Trust Co. v. Pope, La.App., 12 So.2d 724. It becomes necessary that we give an extended review of what the record disloses and our views and comments on the said record.

The contracts themselves are in the record. Each was a printed form executed between the J. R. Watkins Company and the principal defendant (or 'dealer'), and to each contract there were two sureties. There is a studied effort to purport a buyer-seller relationship, whereby the J. R. Watkins Company agrees to sell its merchandise wholesale to the principal defendants, denominated therein as 'Purchaser'. The contract is herewith setout in full:

'This Agreement, made at Winona, Minnesota, this ___ day of _____, 19 __ between The J. R. Watkins Company, a corporation, hereinafter called 'the Company,' and ________ of _____ hereinafter called 'the Purchaser,' witnesseth,

'1. That in consideration of the promisses and agreements of the Purchaser hereinafter contained, to be kept and performed by him, the Company agrees, unless prevented by fire, strikes, or other cause, to sell and deliver to the Purchaser, at its current wholesale prices, free on board cars at Winona, Minnesota, or at its option, at any of its other regular places of shipment, such goods and other articles manufactured or sold by it, as the Purchaser may reasonably require for sale, from the date hereof, until the first day of April, 1948, in the locality in which he is now engaged, or intends to engage, in business, a description of which locality he agrees to furnish and deliver to the Company in writing prior to its acceptance of this agreement; but the furnishing of such description may be waived by the Company at its election, without notice to the Purchaser or the sureties hereon.

'2. And in consideration thereof, the Purchaser agrees to buy from the Company the goods reasonably required by him as aforesaid; and agrees to furnish to it complete, regular, weekly, written records, showing separately the amounts of his cash sales, time sales, and collections; which records, however, or any of them, may be waived by the Company without notice to the sureties hereon, and he also agrees to furnish a complete financial statement when requested to do so.

'3. The Purchaser further agrees to pay the Company its current wholesale prices for the goods and other articles sold to him, as herein provided, and also the prepaid transportation charges thereon, if any, by remitting to the Company each week at least sixty per cent (60%) of the amount received by him from his cash sales, and from his collections on sales previously made, at the time and in the manner and in accordance with the provisions of the weekly record blanks of the Company to be furnished to him; and, at the expiration or termination of this agreement, to pay the whole amount therefor then remaining unpaid; or the Purchaser may pay for such goods in cash, less the usual cash discount allowed for such payments; but such payments, or any of them, may be waived or extended by the Company without notice to the sureties hereon, and without prejudice to the rights or interests of the Company.

'4. If the Purchaser shall not pay cash for said goods and other articles so sold and delivered to him, and the payments at the time and in the manner hereinbefore provided are insufficient to pay therefor, the Company may, in its discretion, thereafter either limit the sales herein agreed to be made, or from time to time suspend the same, or require cash with each order, or cash upon delivery, until the Purchaser's indebtedness is paid, or reduced, as the Company may require.

'5. The Purchaser may, within thirty days after the expiration or termination of this agreement, return, by prepaid freight, to the Company, at Winona, Minnesota, Memphis, Tennessee, Newark, New Jersey, or Oakland, California, in as good condition as when delivered to him at point of shipment, any goods purchased by him from the Company, which he may then have on hand; and the Company agrees to repurchase such goods, in the units and combinations purchased, if in such condition when received by it, and pay or credit the Purchaser therefor at the invoiced prices or at the Company's then prevailing wholesale prices whichever shall be lower. And, if any goods returned by the Purchaser are not in a salable condition when received by the Company at the of the places above named, the Company will restore them to such condition, if that can reasonably be done, and make a reasonable charge therefor, and deduct such charge from the value of such goods, and pay or credit the Purchaser with the balance. But the Purchaser shall not return, nor the Company pay or allow any credit for, any advertising matter of any kind, or for any goods or articles which have been used, or for any goods which cannot reasonably be restored to a salable condition.

'6. The Purchaser shall have no power or authority to make any statement or representation, or to incur any debt, obligation, or liability of any kind whatsoever, in the name of, or for, or on account of the Company.

'7. The Company shall have no interest in the accounts due for goods sold by the Purchaser; and no oral or written statements, printed, advertising or other matter of the Company, sent to, or distributed by the Purchaser, shall be construed to direct or control the sale or other disposition of said goods, or to change or modify the terms of this agreement.

'8. Masculine terms of expression herein shall be taken to include the feminine where applicable.

'9. It is also mutually agreed that this is the complete, entire and only agreement between the parties, and that it shall not be varied, changed, or modified in any respect except in writing executed by the Purchaser and by an officer of the Company; and that either of the...