26 Haw. 74 | Haw. | 1921
OPINION OF THE COURT BY
This action in assumpsit was commenced October 19, 1917, under the. title Cannell, Smith, Chaffin Company, a Corporation, Plaintiff, v. C. W. C. Deering, Defendant, the Bank of Hawaii, Limited, a Corporation, Garnishee. The complaint is in two counts. Under the first count it is .alleged that on April 28, 1917, defendant was indebted
Upon this status of the pleading and the proof the motion of the plaintiff that the jury be directed to render its verdict for the plaintiff for $3154 together with interest was granted to the extent of' directing the verdict for the sum of $3154, interest being disallowed, and the defendant is now before this court upon exceptions and asks for a reversal upon the ground that the plaintiff cor
It is also claimed that the court erred in refusing to permit the defendant to plead to the amended complaint and in ordering his answer to the original complaint to stand as his answer' to the amended complaint. All other questions raised by the bill of exceptions have been expressly waived.
We'first consider the ruling of the. court in refusing to permit the defendant to plead to • the amended complaint. The defendant in indicating what he desired to plead in answer to the amended complaint raised no question which he was not entitled to rely upon under his answer to the original complaint. " The action of the court therefore- in refusing to permit him to replead and in ordering his original answer, to stand, as an :answer to the amended complaint deprived him of no right and could not be prejudicial to him.
The other' question presented requires us to determine whether the business' transacted by the plaintiff in the Territory constituted interstate commerce; If it did there can be no question of the correctness of the court’s ruling
The transactions which the defendant contends amounted to the doing of intrastate business in the Territory and which the plaintiff contends were purely interstate in character may be summarized as follows: In March 1917 Mr. Cannell, who was president of Canned, Smith, Chaffin Company, came to Honolulu bringing with him one volume of each set of books offered for sale by his company for use in taking orders for sets. At Mr. Cannell’s request the defendant called at his room in the Alexander Young Hotel on March 80, and after inspecting the volumes which Mr. Canned had with him signed an order addressed to Canned, Smith, Chaffin Company at 224 Union League Building, Los Angeles, Cal., in the_ following language:
“Please enter my order for the items described below, for which I agree to pay to the order of Canned, Smith, Chaffin Company the sum of thirteen hundred and seven 51/100 dollars, the same to be delivered to me as soon as possible after date':
Parker . 21 vols $525.
Morris . 24 vols 420.
Norroena . 15 vols 187.51
Landor . 10 vols 175.
$1307.51”
At the same time defendant signed a further order addressed as the other and couched in the same general language for a set of Kipling, for which he agreed to pay $322.51. A few days later, on April 5, defendant signed a
The question of when a sale of goods is a transaction of interstate commerce is discussed in 7 Cyc. 416 as follows : “A sale, the parties to which are of' different states, is a transaction of interstate commerce, wherever the contract of sale may be made, and when the goods are to be shipped from one state to another, whether the sale is made before or. after shipment. Negotiation and sale in such cases through selling agents or by agents to buy is also an act of interstate commerce, as is furthermore a contract between citizens of different states to furnish goods and perform labor related thereto, or to manufacture and transport.” In Cook v. Rome Brick Co., 98 Ala. 409, 12 So. 918, it is said: “The sale of brick in another state to be delivered here or the filling of an order sent from this state for brick in another state is an act of interstate commerce.” In Robbins v. Shelby County Taxing District, 120 U. S. 489, it is held that the business of selling goods in Tennessee which were in Ohio at the time of sale and were at a future time to be delivered to the -purchaser in the State of Tennessee constituted interstate
Counsel for defendant has ■■argued1 that since the president of the plaintiff: corporation-was .present in the-Territory and negotiated the- sale - of the books ' and delivered one volume of each set ordered by the defendant at the time the orders were executed the' transactions which •might otherwise have been interstate in character because of these facts became transactions which constituted intrastate commerce. In support of his contention to the effect that the presence of the president in the Territory had this effect he cites Roche v. Ladd, 1 Allen 436. In opposition to this contention plaintiff cites W. H. Lutes Co. v. Wysong, 100 Minn. 112. Neither of these cases in our opinion is authority on the question. We think, however, that it would be necessary' for us to disregard the principle of all the authorities cited by us above as well as many others which might be cited in order to hold that the presence’ of the president of the plaintiff corporation in the Territory as the representative of the plaintiff had the effect of robbing the transactions' of their character as interstate commerce. If we admit that the transactions constituted doing business in the Territory still the plaintiff is not deprived of its right to. sue by failing to comply •with the statute if the business which it did was interstate in character. Hence the many cases cited dealing with what is ‘ and what is not doing business are not in point. Neither do we think the fáct that plaintiff’s representative had with him one volume of each set'of books which-he delivered upon receiving "an order for the set changed the nature of the transaction from intefs'tate to intrastate commerce. Essentially the ’ transaction was 'one between citizens of different states for the sale "of goods which must in order to complete the. sale by deliv-
We are of the opinion that the exceptions should be overruled and it is so ordered.