The Hessig-Ellis Drug Company v. Sly

• Decision Date: 09 July 1910
• Docket Number: 16,615
• Citation: 109 P. 770,83 Kan. 60
• Parties: THE HESSIG-ELLIS DRUG COMPANY, Appellant, v. R. J. SLY, et al., Appellees
• Court: Kansas Supreme Court

109 P. 770

83 Kan. 60

THE HESSIG-ELLIS DRUG COMPANY, Appellant, v. R. J. SLY, et al., Appellees

No. 16,615

Supreme Court of Kansas

July 9, 1910

Decided July, 1910.

Appeal from Labette district court.

Motion denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Transaction Held to be a Sale--Place of the Contract--Foreign Corporation--Authority. A contract by a foreign corporation to deliver goods on board of cars in another state, consigned to parties in this state, upon their order, and containing stipulations for the advertisement of the goods by the consignor and for the return upon certain conditions of goods unsold, is examined, and it is held, (1) that there was a sale of the goods so delivered, and (2) that. the transaction was not "doing business in this state" requiring a certificate of authority as provided in section 1726. of the General Statutes of 1909.

2. PRACTICE, SUPREME COURT--Motion to Dismiss Appeal--Issue Determinable in the Trial Court. An action by such foreign corporation for the price of goods so delivered under the contract referred to was dismissed for want of authority to do, business in this state. After an appeal had been taken from that order the goods were shipped back to the consignor but, were not accepted. It is held, that a motion to dismiss the appeal because of such return can not be sustained. The matter is defensive, to be determined in the district court if presented there in the usual course of practice.

A. A Osgood, and Paul H. Kimball, for the appellant.

W. D. Atkinson, for the appellees.

OPINION

BENSON, J.:

This is an action to recover upon an account for goods alleged to have been sold and delivered. The plaintiff, the Hessig-Ellis Drug Company, is a foreign corporation, with headquarters at Memphis, Tenn. The defendants are partners engaged in the, drug business at Parsons. Upon an appeal from a. judgment for the plaintiff, rendered by a justice of the peace, the district court dismissed the action, upon motion of the defendants, for the reason that the plaintiff had not been authorized to do business in this state. (Laws 1907, ch. 140, § 29, Gen. Stat. 1909, § 1726.) The motion was heard upon affidavits which show that the goods were furnished under a written contract containing the following provisions:

"First In consideration of the purchase of a certain quantity of the product of the party of the first part, by the party of the second part, said product being known and described as Dr. Nott's Cuban Hair Rest. & Hair Tonic, the amount of said purchase being designated by order given this day and date and which for the purpose of identification is marked 'A.' Now, therefore, in consideration of the faithful fulfillment of the terms of said order 'A,' together with the terms of this contract, by the party of the second part, the party of the first part agrees to contract with the Zellner Adv. Agency, Memphis, Tenn., for from 5000 to 10,000 lines agate measure of advertising, specifying the Sun or Eclipse singly or divided, said advertising to be executed during the twelve months following date of the delivery of goods described by order 'A' at Parsons, Kan.

"Second: The party of the first part agrees not to sell to any other dealer than the party of the second part in the town of Parsons, Kan., during the term of this agreement, the product known as Dr. Nott's; but the party of the second part agrees to sell to any dealer in his territory who may be deemed worthy of credit or who tenders cash at the regular net wholesale price, it not being the purpose of either party to this agreement to commit any act in defiance of the federal or state laws regulating commerce.

"Third It is agreed by and between the parties of the first and second part and is an element of this agreement that if for any reason the party of the first part should default or commit any breach of this agreement then it shall be at the option of the party of the second part to at once return all goods unsold at the full invoice price to the party of the first part, and the party of the first part, in event of such contingency, agrees to accept any unsold goods described by order 'A' and will remit on receipt of same, and if for any reason the party of the second part should default in the terms of the agreement made this day and date, then in that case the party of the first part shall have a measure of damage against the party of...