Wyman, Partridge Holding Co. v. Lowe

• Decision Date: 29 March 1937
• Docket Number: No. 7976.,7976.
• Parties: WYMAN, PARTRIDGE HOLDING CO. v. LOWE et al.
• Court: South Dakota Supreme Court

65 S.D. 139

272 N.W. 181

WYMAN, PARTRIDGE HOLDING CO.

v.LOWE et al.^a1

No. 7976.

Supreme Court of South Dakota.

March 29, 1937.

Appeal from Circuit Court, Lawrence County; James McNenny, Judge.

Action by the Wyman, Partridge Holding Company against William E. Lowe and others. From a judgment for defendants, plaintiff appeals.

Reversed and remanded, with instructions.

Williams & Sweet, of Rapid City, for appellant.

Hayes & Hayes and John T. Heffron, all of Deadwood, for respondents.

WARREN, Judge.

The plaintiff, a Minnesota corporation, instituted this action to reform and foreclose a mortgage given by the defendants William E. Lowe and Josephine Lowe, covering certain homestead real property owned by said defendants. The mortgage and accompanying note were given to the plaintiff to cover a past-due indebtedness, incurred for merchandise sold and delivered to the defendants Lowe by the plaintiff corporation. The note and mortgage above mentioned were given by the Lowes to one F. Le Roy Smith, a collector for the Associated Creditors, Inc., who was endeavoring to collect this account for the plaintiff corporation.

The indebtedness for which the note and mortgage were given was incurred by the Lowes for merchandise which they had purchased from the plaintiff corporation. The greater part of this debt was for goods purchased by the Lowes by orders given to the plaintiff corporation's traveling salesmen or by direct mail order to the company. The defendants contend that a portion of said indebtedness was for certain samples, or “outs” as they were commonly known, which were purchased from the traveling salesmen of plaintiff corporation and which were delivered by said salesmen at the time of sale.

The cause was tried to the court without a jury. Upon completion of the trial, a judgment was rendered in favor of the defendant upon the grounds that the plaintiff was a foreign corporation which had done business in the state of South Dakota in violation of the statutes concerning foreign corporations and was therefore not entitled to recover, and that said note and mortgage should be surrendered for purposes of cancellation. Thereafter the plaintiff moved for a new trial, and this appeal has been taken from the judgment and order denying plaintiff's motion for a new trial.

Appellant in this appeal has challenged the sufficiency of the evidence to support the findings of fact, conclusions of law, and judgment of the trial court, and has also assigned as error certain specific rulings and holdings of the trial court. We will concern ourselves only with the question of the sufficiency of the evidence to support the findings, conclusions, and judgment of the trial court. Appellant's various assignments of error concerning the sufficiency of the evidence are all interrelated, and, when placed together, they present the contention that the evidence is insufficient to support the findings and conclusions of the trial court to the effect that the appellant had carried on intrastate business in this state, in its sales of merchandise to the respondents and in obtaining the note and mortgage which form the basis of this suit.

[1][2] Before considering the questions presented by this appeal, it might be well to state that decisions of the United States Supreme Court are final as to what constitutes interstate commerce, Dakota Photo Engraving Co. v. Woodland, 59 S.D. 523, 241 N.W. 510, and that a determination of whether any act, or series of acts, constitutes intrastate or interstate commerce, shall be made in the light of the facts and circumstances surrounding that particular transaction, Neely v. Philadelphia Inquirer Co., 61 App.D.C. 334, 62 F.(2d) 873;Watson-Higgins Milling Co. v. St. Paul Milling Co., 256 Mich. 258, 239 N.W. 295;Burnham Mfg. Co. et al. v. Queen Stove Works, Inc., 214 Iowa, 112, 241 N.W. 405.

The authorities cited by respondents each cover facts peculiar to the individual case which are different from the facts before us in the instant case. The rule of law as applied in those cases cannot therefore be applied to the set of facts before us. From the record, we believe that the cases cited by respondents are readily distinguishable from the instant case.

[3][4] In considering appellant's first contention, that the evidence is insufficient to support the finding that the appellant was engaged in intrastate commerce when it made sales of merchandise to the respondents, we find that it...