Waggener Paint Company v. Paint Distributors

• Decision Date: 10 February 1956
• Docket Number: No. 15547.,15547.
• Citation: 228 F.2d 111
• Parties: WAGGENER PAINT COMPANY, Appellant, v. PAINT DISTRIBUTORS, Inc., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

228 F.2d 111 (1955)

WAGGENER PAINT COMPANY, Appellant, v. PAINT DISTRIBUTORS, Inc., et al., Appellees.

No. 15547.

United States Court of Appeals Fifth Circuit.

December 23, 1955.

Rehearing Denied February 10, 1956.

Wm. Madden Hill, Dallas Tex. (Ungerman, Hill, Ungerman & Angrist, Dallas Tex., of counsel), for appellant Waggener Paint Company.

Ewing Adams, Longview, Tex., Morris Harrell, Snowden M. Leftwich, Jr., Dallas, Tex., for appellees.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

Brought by plaintiff, a foreign corporation, having its principal office and place of business in Clay County, Missouri, the suit was for a debt due on interstate shipments of paint made to defendant corporation, which it was alleged was in liquidation, the other defendants being sued as its stockholders, directors, and trustees in liquidation.

The defendant moved to dismiss the action on the ground that plaintiff has, and has had, sales representatives in Texas and is doing, and has done, intrastate business there, consisting of soliciting and promoting sales to paint distributors in Texas in violation of Arts. 1529, and 2031a, Revised Civil Statutes of Texas, Vernon's Ann.Civ.St.Tex. arts. 1529, 2031a.

The matter coming on to be heard on defendant's motion to dismiss and plaintiff's answer thereto, that the sales out of which the debt arose were sales in interstate commerce, plaintiff, to prove that the transaction was as claimed by it wholly in interstate commerce, offered the testimony of Hamilton, manufacturer's agent for it in Texas, who had solicited the business for plaintiff from defendant corporation.

This testimony, detailing the facts of the particular transaction and Hamilton's activities as manufacturer's agent, can be put in small compass. In substance it shows: that Hamilton was then, and had been for some years, engaged in Texas in soliciting interstate business for the plaintiff; that this business consisted of obtaining orders which would be sent to, and when accepted by, plaintiff would be filled by shipping the goods into the state from the points where they were manufactured.

As to the particular transaction out of which the debt sued for arose, the evidence showed that Hamilton had interested the defendant, Paint Distributors, Inc., in plaintiff's line of paints and, having obtained orders, had sent them in for acceptance and interstate filling by plaintiff.

On cross-examination, Hamilton testified that he had assisted the defendant and other customers in connection with display advertising in order to obtain more orders, and on one occasion had attended a lumbermen's convention where he had set up an exhibit in a trade booth to interest prospective customers.

There was no evidence that plaintiff had ever established warehouses in the state or shipped goods to Texas to be stored in warehouses and sold therefrom, or that it had made any sales in Texas except as a result of having Hamilton and other soliciting agents in Texas solicit business to be shipped in interstate commerce by the manufacturer outside of Texas to the customers within it.

At the conclusion of this testimony, the district judge, after a four page chronological statement, reciting the dates when pleadings were filed or other steps taken in the court, none of which were statements of, or findings as to, the evidence, and concluding thus:

"So you see, we have been pretty busy on this case, Gentlemen. If there has been anything overlooked by all these lawyers I don\'t know what it possibly could be.

"I find now, Gentlemen, in addition to what I have said, as facts, that the motion to dismiss because of the failure to have a certificate permitting doing business in Texas must be granted.

"The activities of Agent Hamilton unmistakably showed the doing of such business in Texas."

entered the judgment appealed from.

Insisting that the findings were not responsive to the sole issue tendered here,¹ and, in addition, that they were not supported by the evidence, appellant is here urging upon us, that under the language of the invoked statutes and the...