Richards-Wilcox Mfg. Co. v. Talbot

• Citation: 233 N.W. 437,252 Mich. 622
• Decision Date: 02 December 1930
• Docket Number: No. 111.,111.
• Parties: RICHARDS-WILCOX MFG. CO. v. TALBOT & MEIER.
• Court: Supreme Court of Michigan

252 Mich. 622

233 N.W. 437

RICHARDS-WILCOX MFG. CO.

v.TALBOT & MEIER.

No. 111.

Supreme Court of Michigan.

Dec. 2, 1930.

Error to Circuit Court, Wayne County; Fred S. Lamb, Judge.

Action by Richards-Wilcox Manufacturing Company, an Illinois corporation, against Talbot & Meier, a Michigan corporation. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before the Entire Bench. Frank C. Cook and John P. O'Hara, both of Detroit (A. L. Baumann, of Detroit, of counsel), for appellant.

Anderson, Wilcox, Lacy & Lawson, of Detroit (Earl L. Shimer and Helen W. Miller, both of Detroit, of counsel), for appellee.

NORTH, J.

The defendant was the general contractor for the construction of a Y. M. C. A. building in Detroit. The Paul O. Winkler Company was the subcontractor for the carpentry work. This latter company contracted with plaintiff for the purchase and installation of ‘Fold-R-Way Folding Partitions,’ which contract plaintiff performed. Not having received the contract price, plaintiff threatened to place a lien upon the building. To prevent this the defendant in writing guaranteed to plaintiff payment of the amount due it. The subcontractor became a bankrupt. Plaintiff brought this suit upon defendant's written guaranty and had judgment, the case having been tried in the circuit court without a jury. The defense urged was based upon the fact that plaintiff was a foreign corporation, organized under the laws of Illinois, and that prior to the time suit was instituted it had not been authorized to do business in Michigan, and therefore could not make a valid contract in this state. Act 84, Pub. Acts of 1921. Defendant asserted that plaintiff in the performance of its contract was doing business in this state. In this connection plaintiff contended that the contract was consummated in Illinois, that the sale of its goods was interstate commerce, and that, because it required special skill and knowledge, the installation of the partitions was an essential, appropriate, and necessary part of the interstate transaction. Plaintiff asserted it was not able to carry on interstate commerce incident to the sale of its products of this character unless as a part of the transaction it contracted to install and place it in an operative condition. The circuit judge filed findings of fact and law in part as follows:

‘That the said partitions and hardware were shipped by the plaintiff from the factory into the State of Michigan, and that thereafter the plaintiff did deliver to and install in said building the said Fold-R-Way folding partitions as provided for in said contract. * * *

‘That the installation of the said Fold-R-Way folding partitions was done under the direct and immediate supervision of the plaintiff's engineer, E. F. Brumbaum. * * *

‘The court further finds that the Fold-R-Way folding partitions sold and installed by the plaintiff were goods in a class known as specialties, and that they were of an intricate nature with hardward of patented features, and that special knowledge, training, experience and mechanical skill are required to properly install, said partitions. That plaintiff's engineer, Mr. Brumbaum, who supervised the installation under this contract had received special training at plaintiff's factory. * * *

‘That good workmanship required that they be installed by the people who manufactured them. That the goods sold by the plaintiff were of an intricate or peculiar quality or complexity, and that the installation was appropriate and essential to the sale and to the accomplishment of the transaction, and that the plaintiff could not sell its goods in the State of Michigan without agreeing to and installing them.’

There is a conflict in the testimony, but the foregoing finding of the court is sustained by competent proof and is binding upon us as a special verdict. Bailey v. Jackson, 241 Mich. 282, 216 N. W. 921;Otto Misch Co. v. E. E. Davis Co., 241 Mich. 285, 217 N. W. 38; and Stobbelaar v. Berg, 247 Mich. 121, 225 N. W. 533. We quote in part the testimony supporting the foregoing finding. Mr. Brumbaum, plaintiff's representative, testified:

‘We call them doors but it is really a removable partition. * * * It requires considerable special knowledge to install and hang the doors to get them to work properly and keep working properly. * * * It is absolutely necessary that the hardware be put on in proper relation and necessary clearance allowed for any warping or swelling of the doors. There are certain features of the hardware which are patented and it is a very special hardware. * * * We never tried to sell the doors; we endeavored to sell the hardware, and it was very unsuccessful because it proved that the contractors could not erect that class of material. * * * We found it was impossible for us * * * to do any business here in that particular line of our hardware unless we installed the jobs complete and furnished the doors and did the erection.

‘Q. State whether or not the reason for that was that it was not possible for other people to install them properly? A. ...