171 S.W. 791 | Tex. App. | 1914
The E. T. Burrowes Company, a foreign corporation, sued C. W. Buhler and A. J. Herrman in justice's court upon a written contract, reading as follows:
San Antonio, Texas, 11/18, 1911.
Order for
Indexed Dec. 1, 1911.
By C. W. Buhler.
To be sent about Feby. 1st.
To be paid for by May 1st, 1912.
When screens are received by purchaser they are ready to be fitted to windows and doors. All moldings, pieces and hardware, as per catalogue, are finished without extra charge.
Accepted:
Salesman: L. H. McDaniels.
An appeal being taken by plaintiff to the county court for civil cases the case was tried in such court without a jury, and plaintiff adjudged to recover from Buhler the amount sued for, but that it take nothing as against Herrmann. Buhler filed a written denial of plaintiff's right to sue, the ground being that plaintiff was a foreign corporation transacting business in this state without a permit to do so and without filing a copy of its articles of incorporation with the secretary of state.
The only question for our decision is whether the court erred in holding that plaintiff could maintain the suit. The evidence upon this issue, in addition to the contract above set out, is as follows: L. H. McDaniels, who resided in San Antonio, was the agent for plaintiff at the time he accepted the written contract, and had been such agent in 1910, 1911, and 1912. The screens were sent, and he installed them. He did not recall whether he hired any one to assist him. He always ordered the window screens to fit exactly, so that all there was to do was to attach the fixtures to the house and hang the screens, but he always ordered the doors too large, so that he could cut them down and make them fit the opening. He sometimes hired a carpenter to cut them down and sometimes did the work himself. He had a little carpenter shop out at his house where he did this kind of work. The business of the plaintiff is the manufacturing of screens in Maine, and those installed by McDaniel were there made according to the measurements taken by him in San Antonio. Herrmann, the architect who ordered the screens for Buhler, testified that the screens were installed by McDaniels, or some one for him; that he had often ordered Burrowes screens and Mr. McDaniels or some one else always put them up; that it was sometimes necessary to do work on the screens to make them fit perfectly. It was agreed that the E. T. Burrowes Company is a foreign corporation, incorporated under the laws of Maine, and that it has not filed with the secretary of state of the state of Texas a duly certified copy of its articles of incorporation and obtained a permit to transact business in Texas.
Appellant contends that appellee could not maintain this suit in our courts, and the question arises whether the facts show that the transaction out of which this suit arises constituted the transaction of business in this state or whether it constituted interstate commerce. It is clear that the transaction constituted interstate commerce, unless the fact that the screens were to be installed alters the case. Appellant relies upon the case of Smythe Co. v. Ft. Worth Glass Sand Co.,
We have found a recent decision by the United States Supreme Court which, we think, should govern us in deciding this case. It is the case of Browning v. City of Waycross, decided April 6, 1914, and reported in
The evidence further shows that this was its regular way of doing business. However, this is not material, as one transaction is sufficient to constitute the transaction of business in this state. Smythe v. Ft. Worth Glass Sand Co., supra. If a foreign corporation can, without complying with our statutes, engage in the business of putting up screens in Texas, a business which any carpenter can perform, it can also sell all the material for a house, ship it in from another state, and contract to put it up in this state, keeping a force of carpenters and mechanics for that purpose. Nor can it be contended that the installation of screens is such a delicate and complex task that the business of selling them cannot be carried on unless the seller furnishes experts to do the work of putting them in place, so this case does not fall within the class of cases upon which the Supreme Court of the United States declined to express an opinion in the Browning v. City of Waycross Case. We conclude that the court erred in holding that appellee could maintain the suit.
The judgment is reversed, and the cause dismissed.