100 P.2d 116 | Wyo. | 1940
On March 31, 1936, the plaintiff, the Creamery Package Manufacturing Company, a corporation organized under the laws of Illinois and having a branch office at Denver, Colorado, entered into a contract at Denver, Colorado, with the defendant, the Cheyenne Ice Cream Company, for the shipment to, and installation at, Cheyenne, Wyoming, of certain refrigerating equipment. This equipment, as stated in the contract, consisted of a super-freezer door, a cold storage door, and certain manufactured products consisting of a compressor, a refrigerating machine, a main shaft, flywheel weighing 480 pounds, ammonia condensor six feet long and fifteen inches wide, ammonia receiver, interceptor, gauges, ammonia pipe connections, electric motor of fifteen horsepower, automatic control devices, and other manufactured products. It further agreed to furnish "hardening room to be insulated with eight-inch corkboard in walls, floor and ceiling; anteroom, to be insulated with four-inch corkboard in walls and ceiling, with six-inch corkboard insulation in partition between hardening room and anteroom." The hardening room was to have an average temperature of 10° below zero, and the anteroom an average temperature of plus 40°, the company to furnish the piping. In that connection it was stated that "the company will furnish piping for the circulation of ammonia in the rooms * * * all valves, fittings and hangers. The *283 piping will be arranged in coils suitable for the purposes for which the rooms are intended. Valves will be placed where required for shutting off any coil or room. The company will furnish necessary connections between coils and balance of the system." The rooms were to contain "1075 ft. 1 1/4" shelf pipe coils for cooling the above room controlled by 1 -CP 8" x 24" Accumulator float control for operating flooded system. Coils to be equipped with suction and liquid headers." The plaintiff agreed to furnish one erecting engineer to install the equipment furnished by it and to furnish and pay all other help necessary for the placing, connecting and starting the machinery in operation. The purchaser agreed to furnish all masonry and carpenter work of every description, foundation of all machinery, electrical wiring, suitable openings in the building for the admission of the machinery and openings in walls and partitions for pipelines, and all material necessary to the completion of the contract not specifically mentioned to be furnished by the plaintiff. It was agreed that the purchase price should be $3155.00 upon the following terms, namely: Cash with the order of $1865.00, the balance to be paid in fifteen equal monthly installments of $86.00 each, beginning June 5, 1936. It was agreed that if the purchaser should default at any time in the amounts due under the contract the seller should have the right to retake possession of the property. It was further agreed that "any part of this agreement contrary to the laws of the state in which it is written or executed or to be enforced shall not invalidate any other part of this agreement." The purchaser paid on the down payment the sum of $900 in April, 1936. It was entitled to a credit for freight paid of $190.86. It made a further payment of $588.25 on May 5, 1937, making a total which was credited by the seller on the down payment of $1679.11. The purchaser also paid six of the monthly installments *284 due, but no other, and defaulted in the payments. Thereupon, on February 6, 1937, the plaintiff in this case brought an action in replevin in the district court of Laramie County to recover possession of the property sold to the defendant. An answer was filed in that case, setting up the fact that plaintiff was not entitled to recover on the contract because of the fact that it was not domesticated in this state. The plaintiff thereupon dismissed that action, domesticated on May 1, 1937, and brought this action on February 15, 1938, to recover the balance due under the contract. The court, after the trial of the case, rendered judgment in favor of the defendant and from that judgment plaintiff has appealed.
1. On May 5, 1937, the defendant paid the sum of $585.25 on the contract and demanded that it be credited on the deferred payments, and now claims that if that had been done the whole amount due to the plaintiff would be paid. It seems, further, that when the conditional sales contract was filed of record in Laramie County, Wyoming, an affidavit was attached thereto stating that the balance due was $1290.00. This did not take into consideration the amount then due on the down payment. It is the theory that the contract recites that the down payment was received and that this recital cannot be contradicted by parol testimony. The contract does not, in fact, contain any such recital. It merely recites, in stating the terms of the consideration, that the down payment should be $1865, but only $900 was actually paid. Even if the statement might be considered as a recital of having received that sum, that would be immaterial. Such recital "in a written instrument as to payment of the consideration is merely in the nature of a receipt and may be contradicted." 22 C.J. 1167. The facts in this case do not fall within any exception to that rule. The affidavit above mentioned, reciting that only $1290 was due at *285 the time when the conditional sales contract was filed, would be but an admission which could be contradicted. The uncontradicted testimony in this case shows that the amount claimed by the plaintiff herein is due and owing. The judgment in this case should accordingly have been in favor of the plaintiff, unless the defense hereinafter mentioned is good.
2. Art. 10, Sec. 5, of the Constitution of this state, provides that no corporation organized under the laws of Wyoming Territory or any other jurisdiction than this state shall be permitted to transact business in this state until it shall have accepted the constitution of this state and filed such acceptance in accordance with the laws thereof. Section 28-141, Rev. St. 1931, makes provision to carry the foregoing constitutional provision into effect. The defendant herein pleaded that at the time when the contract above mentioned was entered into, plaintiff had not complied with the foregoing constitutional and statutory provisions; that plaintiff, in carrying out the contract, was doing business in this state, particularly in connection with constructing the hardening room and the anteroom mentioned in the contract. The plaintiff in its reply stated that it neither affirmed nor denied the construction of these rooms. That pleading was improper, and was equivalent to an admission, under Sec. 89-1026, Rev. St. 1931, which provides that every material allegation of new matter in the answer not controverted by the reply shall, for the purpose of the action, be taken as true. See also Building Association v. Clark, 43 Ohio St. 427; Lake v. Steinbach,
Plaintiff also denied that it was doing business in this state, and further alleged, and now contends, that even if it was doing business in the state in performing the contract, the right to set up the defense of non-domestication was waived by the defendant by reason *286
of the fact that it domesticated in the state on May 1, 1937, and that thereafter, on May 5, 1937, the defendant paid on the contract the sum of $588.25. It is contended that the transaction was at most voidable and not void. We are cited to St. Louis Union Trust Co. v. Chicot etc. Farm Co.,
3. Counsel for the defendant seems to think that by the fact that the plaintiff company domesticated in this state after it had commenced and dismissed its replevin suit, and after it had made efforts to collect the amount due it, it admitted that it was doing business in this state. L.B. Foster Co., Inc. v. Koppel Ind. Car Equipment Co., 215 N.Y.S. 214, is cited. It is apparent, however, or at least probable, that the subsequent domestication took place under the belief that the failure in that respect would be eliminated from the case, and we do not believe that any importance should be attached *288 to that fact, at least under the circumstances. It is, moreover, difficult to see how that fact could change the nature of the transaction which had previously taken place.
Counsel for defendant rely to a considerable extent on Gould Land and Cattle Co. v. Rocky Mountain Bell Tel. Co.,
The contract involved herein was entered into at Denver, Colorado, and provided for the shipment from that place to Cheyenne, Wyoming, of certain refrigeration equipment, the character and complexity of which has been set forth above. The shipment was made accordingly. That constituted interstate commerce. 12 C.J. 22, 27-28. The constitution and laws of this state cannot interfere with such commerce, and are not applicable herein, unless it can be said that part of the transaction herein was intrastate, which affected the *289
whole, so as to make it unenforceable. The question before us, accordingly, is a federal one, and the decisions of the Supreme Court of the United States are the final authority herein. Metal Door Trim Co. v. Hunt,
In Bay City v. Frazier,
The second test above mentioned is as to whether or not the transaction is isolated or not. Most of the courts seem to hold such isolated transactions not violative of the law prohibiting foreign corporations from doing business in the state. 14a C.J. 1273-1276. The defendant thinks that this question depends upon the whole transaction. They produced two witnesses. All that *292
they testified to is the fact that the plaintiff installed some equipment for them. The installation, of course, may have been clearly incidental to interstate commerce, so that the testimony seems to be of no importance herein. It is very doubtful that the interpretation as to what is an isolated transaction is correct. If certain work is in fact incidental to interstate commerce, it makes no difference how great in number the work may be; in each case the character remains the same. If installation work is merely incidental to such commerce, the accumulation in number cannot change the interstate commerce to intrastate. Williams v. Golden Crick,
The defendant contends that the transaction became interstate by reason of the fact that material and labor was furnished locally. It alleged in its answer, which was admitted in the reply, that "the plaintiff bought material and supplies in the city of Cheyenne, which *293
were used in the erection and construction of the said plant at the defendant's place of business in the city of Cheyenne." Whether the plaintiff bought little or much is not alleged. For aught that appears, it may have been but a trifle, and courts do not take cognizance of trifles. It further alleged, which was admitted in the reply, that it took a month for the plaintiff to install the machinery and to erect the hardening and anterooms; that "plaintiff did also furnish one erecting engineer from the State of Colorado and other help from the city of Cheyenne, necessary in the work of constructing and building said plant." The allegation does not inform us how long it took to erect the rooms and how long to install the machinery, or how much labor was used in the two operations separately, so that, for aught that appears herein, the erection of the rooms may have been but a small part of the whole work, not sufficient to convert a transaction on its face interstate to one which is intrastate. On this phase of the case the defendant cites us particularly to PalmVacuum Cleaner Co. v. Bjornstead,
"The agreement to supply materials and labor, whether from points within or without this state, for the purpose of installing the plant and thereby performing the obligations imposed under the terms of the contract, was relevant and appropriate to a transaction inherently interstate in character. The materials and labor supplied were essentially connected with the subject matter of the sale."
It remains, then, to consider as to whether or not the construction of the hardening and the anteroom must be said, upon the record before us, to have converted the transaction into one which was intrastate, or vitiated the whole transaction. Counsel for neither party introduced any evidence as to the nature or character of the "hardening room" and the "anteroom" agreed to be furnished by the plaintiff company, nor do we find any adequate explanation thereof in the briefs of *295
counsel. So we are compelled to rely upon what little is shown in the record, and upon the meager information which we have been able to obtain from scientific treatments. In 12 Ency. Brittanica, 14th ed., p. 40, in an article treating of "factory ice cream," it is stated that "sugar is placed in the mix in the standardizing room and the flavor is added to the mix at the freezer. The freezers or containers are placed in a hardening room, constructed of concrete and lined with cork. The temperature, controlled by a brine refrigerating system, ranges from 10 to 20 degrees below zero." Some information is contained in Miscellaneous publication No. 138 of the United States Department of Agriculture, March, 1932. On page 47, treating of the storage of butter, it is stated that "it is evident from the foregoing that in the successful manufacture of butter refrigeration is necessary in every step of the process and accurate control of temperatures is essential in the making of a high-grade product. In the modern creamery, refrigeration is employed in connection with the processes of pasteurization, ripening and churning, in the preparation of starters, in cooling water for washing the butter, and in cooling the storage room for the finished product. Frequently it is employed in cooling the raw material." On pages 54-55 it is stated: "Except in the case of the low temperature or quick hardening process, about half of the actual freezing of the ice cream takes place in the hardening room * * *. The partly frozen ice cream is therefore quickly transferred to the hardening room, where the temperature is lowered. * * * The consensus of opinion of ice-cream manufacturers is that the hardening room should be maintained at about minus 10° for best results. * * * The hardening rooms should be provided with ample insulation. There should be no hollow spaces in walls, floors or ceilings, for such spaces permit the collection of moisture and frost, and thus cause *296
weakening and deterioration of the structure. The structural walls should, therefore, be of solid construction such as brick or concrete. Practice seems to indicate that at least the equivalent of 8 inches of pure cork should be used in the floors of the hardening room." The contract in the case at bar provides for the sale and installation of "refrigeration equipment." On its face, it indicates that the rooms are a part thereof. From what has been stated above, it would seem that the hardening room is an essential part of a complete refrigeration system for a creamery, at least one which makes ice cream. The average temperature thereof was to be 10° below zero, and we take it that it requires skill to adjust the temperature as required. The rooms were to be furnished with considerable equipment, as above noted. We do not know how it was to be installed, and what connection the walls of the rooms would have therewith. It is not unlikely, so far as the record shows, that the manufacturer of the machinery above mentioned can furnish the rooms much more cheaply, and make them more perfect than anyone else. We cannot say from the record before us that, in order to make the system operative as a whole — which is the main criterion herein under the York Manufacturing Company case, supra — the construction of the hardening room was not a relevant part of the transaction in this case. The evidence in a retrial of the case may present a different state of facts. The point is not so clear as to the anteroom. We cannot tell what it is. Counsel for the defendant calls it a cooling room, and places it on the same footing with the hardening room. Provision was made for its average temperature; it was to be equipped along with the hardening room, and we are not able to say that it presents a question different from that relating to the latter. In the case of R.S. Webb, Jr. v. Knoxville Glass Company,
We have stated that the contract provides that "any part of this agreement contrary to the laws of the state in which it is written or executed or to be enforced shall not invalidate other parts of this agreement." We are not called upon to decide what bearing, if any, that agreement has upon the transaction herein, *298
if it should be found that the construction of the rooms was not incidental to interstate commerce, since the point has not been argued. See Smilansky v. Mandel Bros.,
The judgment of the trial court is reversed and the cause is remanded for a new trial.
Reversed and remanded.
RINER, Ch. J., and KIMBALL, J., concur.