Vilter Manufacturing Company v. Evans

• Decision Date: 06 January 1927
• Docket Number: 12,639
• Citation: 154 N.E. 677,86 Ind.App. 144
• Parties: VILTER MANUFACTURING COMPANY v. EVANS, RECEIVER
• Court: Indiana Appellate Court

154 N.E. 677

86 Ind.App. 144

VILTER MANUFACTURING COMPANY v. EVANS, RECEIVER

No. 12,639

Court of Appeals of Indiana

January 6, 1927

Rehearing denied April 29, 1927.

From Allen Circuit Court; Sol A. Wood, Judge.

Action by the Vilter Manufacturing Company against John I. Evans as receiver of the Fort Wayne Dairy Company, Incorporated. From a judgment for defendant, the plaintiff appeals.

Reversed.

James M. Barrett, Sr., James M. Barrett, Jr., R. Earl Peters and Phil M. McNagney, for appellant.

Howard L. Townsend and Albert E. Thomas, for appellee.

OPINION

NICHOLS, J.

Action on a claim filed by appellant in the receivership of Fort Wayne Dairy Company, Incorporated, by which claim, appellant sought the return of certain machinery sold by it to said dairy company on conditional sale contract and not fully paid for, or the allowance of the balance of the purchase price then due as a preferred claim against the assets of said dairy company.

The issues were joined upon an amended complaint, and the demurrer thereto filed by appellee, the amended complaint alleging that appellant was a corporation organized under the laws of the State of Wisconsin and had not complied with the laws of this state relative to foreign corporations doing business; that on or about November 27, 1922, it executed a contract with said dairy company for the sale to said company of an ammonia compressor and other machinery and apparatus that there was an unpaid balance of the purchase price due appellant of $ 900; that appellant manufactured and installed for said dairy company all of said machinery and apparatus and fully complied with said contract; that said machinery was accepted and retained by the dairy company and was an essential part of its plant and necessary for the proper and efficient operation thereof; that, in connection with the installation of said machinery, it was necessary and essential to furnish, and appellant did furnish, a skilled erecting engineer to supervise the erection, installation, testing and starting of said machinery, which consisted of a great many pieces of large, heavy and extremely intricate machinery which, when assembled, occupied a space approximately fifteen feet in length by seven feet in width and weighed about 13,000 pounds; that it was necessary to ship said machinery from Milwaukee to Fort Wayne disassembled, on account of its size and weight; and that, in order to install the same, it was necessary to hire local common laborers, who worked a total of 1,419 hours during the period of seven weeks on the erection and installation of said machinery, and said laborers were paid the sum of $ 768; that no supplies were purchased at Fort Wayne nor any work done on said machine by said local laborers other than the assembly of said parts. The complaint then asked for the immediate return of the property so sold on conditional sale, or appellant offered to relinquish its right to possession on immediate payment as a preferred claim of the balance due of the contract price. The demurrer filed thereto was predicated upon the proposition that appellant's amended claim showed upon its face that it was a foreign corporation which had not complied with the act of 1907 of the State of Indiana relative to foreign corporations doing business in this state, Acts 1907 p. 286, § 4910 et seq. Burns 1926, and that the transaction in question constituted the doing of business in this state by a foreign corporation and in violation of such statute. The question raised, therefore, is whether or not the contract of sale of the refrigerating plant in question and its erection by appellant at Fort Wayne constituted interstate commerce or the doing of business within the State of Indiana in violation of its statutes in relation thereto.

The demurrer to the amended complaint was sustained, to which ruling of the court appellant at the time excepted, and upon its failure to plead further, judgment was rendered for appellee, from which judgment this appeal.

Appellee to sustain his contention that the trial court did not err in sustaining his demurrer to the complaint, cites United States Const. Co. v. Hamilton Nat. Bank (1920), 73 Ind.App. 149, 126 N.E. 866. It is to be noted, however, that the contract involved in that case was for the equipment of a manufacturing plant with a sprinkler system, rather than the simple sale of machinery. This work required the employment of labor for weeks in such construction, required the building of a tower, a tank, and other carpenter work, and the excavating and filling of trenches, with the use of material which was on the ground of, and the property of, the manufacturing company, while, in the contract here involved, there was a simple sale of an ammonia compressor, and machinery and apparatus appurtenant thereto, with an agreement to install the same. It appears by the averments of the complaint that, because of the great weight and size of the compressor and its appurtenant machinery, it was necessary to take it to pieces and then to reassemble it at the point of destination; that the machinery involved consisted of many pieces of large, heavy, and extremely intricate machinery, and that the services of a skilled erecting engineer were required to supervise the erection, installation, testing and starting of such machinery. It is admitted by appellee that the services of this engineer were within the compass of the interstate sale, but he contends that the employment of local laborers to assist in the erection and installation of the machinery was doing a local business, not inherently and intrinsically a part of the interstate contract, but that such employment was essentially intrastate...