Kinnear & Gager Mfg. Co. v. Miner
| Decision Date | 16 January 1916 |
| Citation | 89 Vt. 572,96 A. 333 |
| Court | Vermont Supreme Court |
| Parties | KINNEAR & GAGER MFG. CO. v. MINER. |
Exceptions from Windham County Court; Fred M. Butler, Judge.
Assumpsit by the Kinnear & Gager Manufacturing Company against Charles Miner. Judgment for plaintiff, and defendant excepts. Affirmed.
Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.
Barber & Barber, of Brattleboro, for plaintiff. Chase & Chase, of Brattleboro, for defendant.
The plaintiff is a foreign corporation, and has not complied with P. S. 774, prescribing certain conditions precedent to such a foreign corporation's right to do business in this state. It entered into a contract with the defendant engaging to furnish certain materials for the latter's new building at Brattleboro. It carried out this undertaking, making delivery of the materials to the defendant in Ohio. The latter accepted the goods and made use of them as contemplated by the contract. The plaintiff brought this suit for the price of the goods, and the validity of the contract was established. Kinnear & Gager Mfg. Co. v. Miner, 88 Vt. 324, 92 Atl. 459. The defense now made rests upon P. S. 776, and counsel agree that the questions presented are two in number as follows:
(1) Was the plaintiff "doing business" in this state within the meaning of the statute?
(2) Was this contract an interstate transaction, and therefore beyond the reach of the statute?
1. It appears from the record that the plaintiff had made numerous contracts in this state, through its agents and representatives, under which it had furnished its product, manufactured in and forwarded from another state, to residents of Vermont. In some instances the purchaser erected and installed the materials so furnished; in many others the plaintiff erected and installed the same, furnishing the necessary labor and supplies therefor.
The facts recited require us to hold that, so far as the erection and installation of these building materials are concerned, the plaintiff was doing business in this state within the meaning of the statute. The rule governing such cases is this: Where a foreign corporation is engaged in transactions which are in character partly interstate commerce and partly purely local, and the latter element can be separated from the former, state statutes apply.
Thus it is held in Muller Mfg. Co. v. Dothan Bank, 176 Ala. 229, 57 South. 762, that a foreign corporation furnishing and erecting certain trimming, fixtures, etc., for a bank building, was doing business in the state where the work was done. And in Browning v. Waycross, 233 U. S. 16, 34 Sup. Ct. 578, 58 L. Ed. 828, it is held that erecting lightning rods as agent of a nonresident manufacturer thereof, being local and separable, was doing business in that state, and that such business was subject to a local license tax. See, also, American Amusement Co. v. East Lake Chutes Co., 174 Ala. 526, 56 South. 961.
If, on the other hand, the local element of the transaction is merely incidental to the element of interstate commerce, the whole is protected from state laws. Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649; Kehrer v. Stewart, 197 U. S. 60, 25 Sup. Ct 403, 49 L. Ed. 663; Brownington v. Waycross, supra.
But, though in the respect specified this plaintiff has heretofore been doing business in Vermont contrary to the provisions of the statute, this contract may be enforced, since it involves only an interstate transaction wholly independent of and apart from its purely local business. It cannot be penalized in this transaction for its conduct in some other transaction. This follows from the separability of the two elements of its business, and is shown by the cases holding that taxes locally imposed upon the interstate and intrastate business of a foreign corporation are valid on the latter, though invalid on the former, if they can be separated. Ratterman v. Western Union Telegraph Co., 127 U. S. 411, 8 Sup. Ct. 1127, 32 L. Ed. 229; Kehrer v. Stewart, supra. It is also shown by Minnesota v. Creamery Pkg. Co., 115 Minn. 207, 132 N. W. 268, L. R. A. 1915A, 892, Ann. Cas. 1912D, 820, wherein it was held that a judgment prohibiting the defendant from continuing its business in that state did not prevent it from doing an interstate business therein.
The defendant insists, however, that this contract did not...
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...commerce is not sustained by the pleadings. Kent v. Tuttle (Mont.) 50 P. 559; Palm Cleaner Company v. Bjornstad, supra; Kinnear & Gager Mfg. Co. v. Miner, 96 A. 333. Payments made by defendant after plaintiff had in Wyoming were not a ratification of plaintiff's violation of the constitutio......
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