49 Pa. Super. 585 | Pa. Super. Ct. | 1912
Opinion by
In this action of assumpsit for the price and value of goods sold and delivered by the plaintiff to the defendant, the court below granted judgment against the defendant for the full amount of the plaintiff’s claim for want of a sufficient affidavit of defense, and the defendant appealed.
From the declaration and the affidavit of defense we gather the following facts: The defendant resides and does business in the city of Philadelphia; the plaintiff is a foreign corporation engaged in the manufacture of glass in Columbus, Ohio; that the plaintiff has for several years had an agent located in Philadelphia who kept in his office samples of glassware and he took orders for goods and transmitted the orders to the plaintiff at Columbus; that the goods in question were so ordered by the defendant in Philadelphia through said agent and they were to be shipped from Columbus to Philadelphia at the cost of the defendant, and they were so shipped, the plaintiff paying the freight on the same and charging it to the defendant; that the value of the goods was near $800; that the defendant actually received the goods and used them and never offered to return them and found no fault with the quantity or quality of the same; that the defendant actually drew three several checks and sent them to the
The contract in this case was, in law, for the sale and delivery of the goods in question f. o. b. Columbus, Ohio, and it cannot be doubted that when these goods were delivered on the cars in Columbus, the title then and there vested in the defendant, and it seems like a waste of time to cite authorities on this proposition. We will, however, mention the following cases which control this question: Blakeslee Mfg. Co. v. Hilton, 5 Pa. Superior Ct. 184; Werner Saw Mill Co. v. Ferree, 201 Pa. 405; Rickey v. Tutelman, 19 Pa. Superior Ct. 403.
In the affidavit of defense it is averred that the plaintiff had been for a long time doing business in this commonwealth and that it had never complied with the provisions of the Act of assembly of April 22, 1874, P. L. 108, but there is not an averment in the affidavit of the doing of any actual business by the plaintiff, within the state of Pennsylvania, except the taking of orders and transmitting them to Columbus. It is true the affidavit avers the doing of business in Pennsylvania as a legal conclusion, but it gives no facts upon which we can look and determine that the plaintiff was violating the provisions of the act of assembly. All that can be legitimately inferred from the affidavit is that the plaintiff had an agent in Philadelphia who exhibited samples and took orders for the sale and delivery of goods at Columbus, Ohio, and this is not prohibited by the act of assembly nor by the decisions of our appellate courts. We think this question is absolutely ruled by our case of Blakeslee Mfg. Co. v. Hilton, 5 Pa.
“The words ‘doing any business/ as used in the act, should not be construed to mean taking orders or making sales by sample, by agents coming into our state from another, for that purpose. To hold otherwise would make the act offend against the constitution of the United States as imposing unlawful restrictions on interstate commerce: ” citing many authorities. See also Campbell Printing Press
The defendant’s counsel has cited and referred to a large number of cases which, in our opinion, do not sustain his position at all. We will briefly refer to some of them: In Lasher v. Stimpson, 145 Pa. 30, the manufacturing company was a New Jersey corporation and was actually carrying on the business of manufacturing and selling soap or a washing compound within the state of Pennsylvania. Counsel also cites Building, Loan and Savings Assn. v. Neal, 15 Pa. Superior Ct. 400, but he fails to note that that case was reversed by the Supreme Court (201 Pa. 9). He also cites Wall Paper Co.’s App., 15 Pa. Superior Ct. 407. In that case we find in the opinion of the Superior Court that the corporation had branch stores located in the city of Philadelphia and was actually employing part of its capital in doing business in this state. He also cites Chicago Bldg. & Mfg. Co. v. Myton, 24 Pa. Superior Ct. 16, but in that case the corporation was actually engaged in business in Pennsylvania. He also cites Com. v. Nolde, 44 Pa. Superior Ct. Ill, and quotes from that case, and the portion of it quoted shows the actual doing of business in Pennsylvania by the foreign corporation. Our conclusion is that the affidavit of defense in the present case does not show the plaintiff corporation was engaged in any business in Pennsylvania which required it to comply with the Act of April 22, 1874, P. L. 108.
We all agree that the judgment should be affirmed.
The assignment of error is dismissed and the judgment is affirmed.