Louisville Trust Co. v. Bayer Steam Soot Blower Co.
| Decision Date | 17 November 1915 |
| Citation | 179 S.W. 1034,166 Ky. 744 |
| Parties | LOUISVILLE TRUST CO. v. BAYER STEAM SOOT BLOWER CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.
Action by the Bayer Steam Soot Blower Company against the Louisville Trust Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Wehle & Wehle, of Louisville, for appellant.
Grubbs & Grubbs, of Louisville, for appellee.
Plaintiff Bayer Steam Soot Blower Company, a Missouri corporation brought this action against the Louisville Trust Company to recover $330, the price of two soot blowers which it furnished defendant for use in its office building. Judgment was rendered on the pleadings in favor of plaintiff, and the defendant asks that an appeal be granted.
The contract between the parties was entered into on August 1, 1913. The contract provided, in substance, that the Louisville Trust Company was to have the privilege of trying the blowers for a period of six months, dating from the date of receipt of the blowers, and, if at the end of that time it was not satisfied and did not desire to retain the blowers, they would be removed by plaintiff at its expense. The contract also provided that, if the blowers did not prove satisfactory, the trust company was to notify plaintiff to that effect in writing within ten days after the expiration of the trial period; otherwise the purchase price was to become due and payable six months from the date of the receipt of the blowers.
The petition was filed on August 17, 1914. After setting out the contract between the parties, it states that the two blower systems were delivered to defendant in the month of August, 1913, and although defendant had had ample opportunity after receiving the machinery to give the system a fair trial, it had never given the system any trial whatever, but had retained the machinery in its possession ever since its delivery. Defendant answered in three paragraphs.
By the first paragraph it pleaded, in substance, that it failed to make a trial of the blower system, because it had ascertained that the system had been tried by other corporations in the city of Louisville having a similar boiler pressure to that of defendant's plant, and that the soot blowers were found unsatisfactory, and had to be removed and returned to St. Louis; that to install the system would have entailed an expense of from $150 to $160, which, in view of the experience of other concerns having a similar boiler pressure to that of plaintiff, would have been a useless waste; that, for this reason, defendant failed to make the connections and give the machinery a trial, and considered and treated the blowers in good faith as unsatisfactory to itself, and offered to return same to plaintiff.
By paragraph 2 defendant pleaded that at the time the contract was made plaintiff, by its authorized agent, entered into a collateral agreement, by which plaintiff contracted to send a competent person to make the necessary connections for the machinery, and the plaintiff failed to send a man for that purpose, although defendant notified plaintiff that it was ready to make the connections and that a man be sent.
By paragraph 3 defendant pleaded that plaintiff was a corporation organized under the laws of the state of Missouri, and was not a foreign insurance company, and was engaged in doing business in this state, and at the time of the execution of the contract sued on it had not complied with section 571 of the Kentucky Statutes, requiring every corporation but foreign insurance companies carrying on business in this state to file in the office of the secretary of state a statement signed by its president or secretary, giving the location of its offices in the state of Kentucky and the name or names of its agents thereat upon whom process might be served, and making it unlawful for such corporation to do business in this state until such statement has been filed, and that the contract sued on was null and void.
Plaintiff's demurrer to the first and second paragraphs of the answer was sustained, but overruled as to the third paragraph. Subsequently defendant filed an amended and supplemental answer, pleading, in substance, that since the filing of its original answer defendant had offered to have the connections made, provided plaintiff would send a competent man to help defendant make such connections, and, if such agent should succeed in making the connection, defendant would keep the system and pay the purchase price therefor and waive the defenses made in its answer. The plaintiff agreed to have a competent man come to Louisville to make the connection, and, relying upon this promise, defendant expended $48, but plaintiff failed to comply with its agreement. The pleading concludes with a prayer to the effect that the petition be dismissed, and that defendant recover on its counterclaim the sum of $48. To the amended and supplemental answer plaintiff interposed a demurrer, which was sustained. To the third paragraph of defendant's original answer plaintiff filed a reply, denying the plaintiff carried on business in the state of Kentucky, and pleading affirmatively that plaintiff was a Missouri corporation engaged in interstate commerce; that its method of doing business was through traveling agents sent into the state of Kentucky and other states to solicit orders for the blowers system on a commission basis; that these orders were submitted to plaintiff for its approval in St. Louis, and, when accepted by plaintiff, the orders were filled by shipping the blowers to the purchaser; that it had never had any office, factory, or place of business in the state of Kentucky; and that the orders for the two blowers purchased by defendant were obtained by its traveling salesman, and were approved by plaintiff at its office in Missouri. It further pleads that section 571 of the Kentucky Statutes has no application to the business done by plaintiff, but that, if it does, it is in violation of the commerce clause of the federal Constitution. Defendant's demurrer to the reply was overruled, and, having declined to plead further, judgment was rendered in favor of plaintiff.
The first question presented is the propriety of the trial court's action in sustaining the demurrer to the first paragraph of defendant's answer....
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