112 Minn. 469 | Minn. | 1910
This action was brought in the district court of the county of Hennepin to recover the purchase price, $629.72, of fifty bags of medium pearl tapioca, which the complaint alleged the plaintiff sold and delivered to the defendant. The defense was that the tapioca was purchased to be delivered November 20, 1907, but was not; that the bags were to be of the average weight of only one hundred fifty pounds each, but in fact they each contained more than two hundred fifty pounds; that no delivery of the tapioca was ever made; and, further, that the plaintiff is a foreign corporation, and never complied with the Somerville law (R. L. 1905, §§ 2888, 2889). The first two defenses were submitted to the jury, and they decided by special verdicts against the contention of the defendant
1. The first contention here urged by the defendant is that the plaintiff cannot maintain this action, because it is a foreign corporation and the sale in question was a transaction.in the course of its business carried on in this state without complying with the Somerville law. The trial court instructed the jury as to this question to the effect following: The claim of the plaintiff is that it only maintains an agent in the state for the purpose of taking orders, subject to its approval, for goods to be thereafter delivered, and that the goods shipped by it into this state were for the purpose of filling such orders, and that the sale in question was a transaction of this kind. If from the evidence you find this to be true, then the plaintiff has not violated the statute, and is entitled to sue in the courts of this state. If, however, from the evidence you find that, at and prior to the time of the transaction here in question, the plaintiff shipped into the state of Minnesota merchandise not previously sold, and that such goods were thereafter sold and delivered to purchasers within this state, and that such sales were thereafter made, sales of goods which were in stock or storage here in this state, then I charge you, as a matter of law, that the plaintiff cannot maintain this action. The charge of the court was correct. Rock Island Plow Co. v. Peterson, 93 Minn. 356, 101 N. W. 616.
The jury by their verdict necessarily found, under this instruction given them, that the goods were shipped from without into this state for the purpose of filling an order theretofore given for them. It follows that unless the undisputed evidence shows that the plaintiff was doing business in this state, and that the sale and delivery of the tapioca was in the course of such business, the trial court did not err in submitting the question to the jury.
There was evidence tending to.show that the plaintiff was a foreign corporation, having its principal place of business in Chicago, and the defendant a domestic corporation, having its place of business in Minneapolis; that the plaintiff had an agent in Minneapolis,
The evidence to support these facts was conflicting in material respects. There was evidence on the part of the defendant tending to show that the plaintiff was accustomed to ship into this state goods not previously ordered and sell them in the open market for “spot cash.” The agent of the plaintiff testified to the contrary. There is but little conflict in the evidence that the tapioca in question was shipped from Asia to Minneapolis upon the order to which reference has been made. The instructions of the court, as to whether plaintiff was doing business in this state without complying with the provisions of the statute applicable to foreign corporations, were quite as favorable to the defendant as it was entitled to have them. The evidence justified the submission of the question to the jury.
2. The only other contention of the defendant calling for special consideration is that there was no delivery of the tapioca, actual or constructive; hence the trial court erred in not instructing the jury that the plaintiff in no event could recover more than nominal damages. If there was no evidence of such delivery, the instruction should have been given; for if there was no delivery actual or constructive, so that the tapioca was placed within the control of the defendant, an action for the purchase price would not lie. McCormick Harvesting Machine Co. v. Balfany, 78 Minn. 370, 81 N. W. 10, 79 Am. St. 393. The trial court submitted the question of delivery to the jury. The question is whether there was any evidence which would sustain a finding that there was such a delivery.
The trial court charged the jury to the effect that, if the tapioca was so segregated and placed at the disposal of the defendant within a reasonable time after the making of the contract for its sale, it would constitute a constructive delivery. The defendant challenges the correctness of this instruction.
The first contention in this connection is that there is no evidence in the record that the fifty bags intended for the defendant were included in the two hundred sixty bags. No witness testified directly to such fact, but the circumstantial evidence tending to establish the fact is practically conclusive. It is further urged that there was no constructive delivery, because the title would not vest in the defendant until the carrier was notified of the sale and agreed to hold the goods for the defendant. It may be conceded as a general abstract proposition that, to constitute a good constructive delivery of chattels in the possession of a bailee, notice of the sale of such chattels must be given to the bailee, which he agrees to hold for the purchaser. The rule, however, is not applicable to this case; for a consideration of the whole evidence leads to the conclusion that the parties intended the precise method of delivery which the plaintiff
Order affirmed.