Plibrico Jointless Firebrick Co. v. Works

• Citation: 274 Mass. 281,174 N.E. 487
• Parties: PLIBRICO JOINTLESS FIREBRICK CO. v. WALTHAM BLEACHERY & DYE WORKS.
• Decision Date: 29 January 1931
• Court: United States State Supreme Judicial Court of Massachusetts

274 Mass. 281

174 N.E. 487

PLIBRICO JOINTLESS FIREBRICK CO.

v.WALTHAM BLEACHERY & DYE WORKS.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 29, 1931.

Exceptions from Superior Court Suffolk County; Alonzo R. Weed, Judge.

Action by the Plibrico Jointless Firebrick Company against the Waltham Bleachery & Dye Works. The trial judge found for defendant on its plea in abatement, and plaintiff brings exceptions.

Affirmed.

J. M. Raymond, of Boston, for plaintiff.

A. M. Beale, of Boston, for defendant.

PIERCE, J.

This is an action of contract brought by the plaintiff, an Illinois corporation, against the defendant to recover a sum of money for work done and material furnished in accordance with the stipulations of a contract between them. The defendant filed a plea in abatement to the effect that the plaintiff corporation is one which comes within the provisions of G. L. c. 181, § 3, and that the plaintiff has not complied with the provisions of G. L. c. 181, § 5, relating to the qualification and right of foreign corporations to do business in this Commonwealth. At the hearing the plaintiff conceded ‘that it is an Illinois corporation and that it has not complied with the requirements of G. L. c. 181, § 3, but contended that there was no necessity for such compliance in its case.’ At the close of the evidence the plaintiff and defendant respectively filed requests for rulings of law. The judge filed a statement of his findings and rulings and found for the defendant upon the plea in abatement.

The case is before this court on the plaintiff's exceptions to the giving of four requests for rulings submitted by the defendant, to the judge's denial of the plaintiff's requests for rulings numbered one, two, three, four, seven and ten, to the denial of its motion for a finding in its favor as matter of law, and to the following rulings of the judge: ‘1. That the plaintiff is a corporation coming within the provisions of G. L. c. 181, § 3. 2. That the plaintiff had a usual place of business within this Commonwealth at the time and prior to the time when the contract in suit was made and this action begun. 3. That the plaintiff was transacting business within this Commonwealth at the time and prior to the time when the contract in suit was made and this action begun. 4. That said place of business was not maintained solely for the transaction of interstate commerce. 5. That the plaintiff has continued to transact business within the Commonwealth.[274 Mass. 283]6. That the plaintiff was a corporation which, under the circumstances disclosed by the evidence, should comply with the requirements of G. L. c. 181. 7. That in the circumstances found by the court the plaintiff cannot maintain this action.’

[1] At the hearing the defendant called as a witness Robert H. Wilder and introduced in evidence certain documents. No other evidence was offered by either party. From such evidence it appeared that the plaintiff has its principal office at Chicago, Illinois, and has factories in Chicago and in Trenton, New Jersey. It manufactures and sells fire brick, called Plibrico, for the lining of boilers. It markets its product in a section of New England through the medium of the Grant-Wilder Engineering Company, a copartnership, with offices in Boston, Cambridge and elsewhere. The relations between the plaintiff and the Grant-Wilder Engineering Company are governed by a contract dated June 30, 1928. By the terms of the contract the plaintiff is called therein the ‘Company’ and the Grant-Wilder Engineering Company is ‘designated as the Distributor.’ In return for a specified agreement of the company to pay the distributor a certain sum by way of a discount or commission on the sales of Plibrico, the distributor agreed during the continuance of the contract, to solicit trade for the product of the company in the territory assigned to the distributor and to pay and discharge all office and travelling expenses incurred by it or its agents in connection with the sale or marketing of the product of the company, and all charges incurred in the handling of the product for local distribution. The distributor also agreed ‘to carry the name * * * [of the company] in the local telephone directory and on * * * [the] office door [of the distributor] at his own expense.’ Further provisions of the agreement are: ‘3. Said Distributor further agrees to abide by all the rules, selling conditions and terms obtaining or maintained in the usual conduct of the business of said Company, and all orders taken by him or his agents shall be subject to the acceptance by said Company as to credit, price, terms and delivery. * * * 6. Said Distributor will conscientiously supervise and service installations of Plibrico whenever it may be necessary and to the best of his ability to see that customers are instructed to use and install it properly so as to get satisfactory results in the use and service of Plibrico, and to carry Workmen's Compensation insurance as required by law to cover any workmen he may hire. * * * 11. It is further understood that although all orders shall be billed directly from Company to customers and all bills shall be collected by said Company, nevertheless, said Distributor shall keep said Company advised relative to customers' credit and conditions within his knowledge and aid and assist said Company when required in collecting past due or bad accounts in said territory. * * * 14. It is expressly understood that nothing in this contract or the relations established by reason of same shall in any way authorize said Distributor to sign the name of said Company to any commercial paper, contract or other instrument, nor to contract any debt or obligation binding said Company to the payment of money or otherwise obligating said Company without its consent in each specific instance first obtained in writing.’

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