197 P. 77 | Cal. | 1921
The object of this action was to recover damages on account of the failure and refusal of the defendants to deliver to plaintiffs two carloads of beans, in the performance of an agreement for the sale and delivery thereof by the defendants to the plaintiffs.
The plaintiffs were partners doing business under the firm name of Moon-Taylor Company. They carried on their business in the city of Lynchburg, in the state of Virginia. The contracts for the sale of the two carloads of beans aforesaid were made in the month of May, 1916, by letters and telegrams through the mail and over the wires, passing between the plaintiffs in Lynchburg, Virginia, and the defendants in Los Angeles, California. The plaintiffs had no place of business in California, and so far as appears from the evidence they did not carry on any business here with any other persons except the defendants, and that business consisted of occasionally buying beans from them in carload lots, to be shipped from California to Lynchburg, Virginia. This had been going on for about eighteen months prior to May, 1916. The business was all conducted by correspondence. None of the plaintiffs ever personally appeared in California except that at one time one of them, happening to be in California, bought one carload, not, however, either of the carloads in question here. *363
The defendants admitted the making of the contract, but denied that the damages for the refusal to perform it were equal to the amount demanded in the complaint. As a further defense they alleged that the plaintiffs were copartners and were doing business under the firm name of Moon-Taylor Company in the state of California at all the times involved in this action, and that they had not, nor had anyone for them, ever filed with the clerk of any county in the state a certificate stating the names in full of all the members of the partnership; nor had they, or anyone for them, published such certificate at any time in any newspaper in any county in the state, as required by section 2466 of the Civil Code.
The court below found that these allegations of the answer relating to the filing of the certificate were true and that said name, "Moon-Taylor Company," is fictitious and does not disclose the names of the persons interested as partners in the business; that the plaintiffs had carried on the business of buying beans and other commodities in wholesale lots in the state of California under said partnership name for more than a year prior to May, 1916, such commodities so bought to be delivered to them on board cars in the state of California. Thereupon judgment was given and entered for the defendants, from which the plaintiffs appeal.
[1] We are of the opinion that the provisions of sections 2466 to 2472, inclusive, of the Civil Code, do not apply to persons carrying on business in the manner disclosed by the evidence in this case. The plaintiffs had no place of business in this state. They did not come here to do any business. The transactions in question were carried on by correspondence as above stated. The business simply consisted of orders, sent by mail or telegram to the defendants and accepted by them, for the shipment of beans to be delivered to plaintiffs on the railroad somewhere in California for shipment to them at Lynchburg. We think this does not come within the scope of section 2466 That section provides that "every partnership transacting business in this state under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the county in which his or its principal place of business is situated, a certificate, stating" the names in full of all the members of the partnership *364
and their places of residence. The certificate must also be published in a newspaper, if there be one in the county, and, if not, then in a newspaper in an adjoining county. This language clearly implies that the partnership so transacting business and required to make the certificate is a partnership having a place of business in some county in the state. Otherwise there would be no significance in the requirement that the certificate must be filed with the clerk of the county in which "its principal place of business is situated." We cannot conceive that it was intended to apply to persons who, being engaged in interstate commerce in a distant state, send orders by mail from that state to persons in this state for the shipment of goods to them at stated princes. It is true that in a certain sense the business is transacted in this state, it being held, as a matter of law, that the person so sending the letter thereby makes the mail carrier his agent to deliver the letter to the addressee. Also when he directs goods bought by him to be delivered for him on board cars in California, he makes the carrier his agent to transport the goods from California to his home place of business, and in such cases and in some kinds of actions it is frequently held that the contracts are made in this state. It has also been held that the making of a contract is a business transaction and constitutes, in some instances and for some purposes, a doing of business, or, as section 2466 puts it, "transacting business." But all this can take place without the persons concerned having a place of business in the ordinary sense of the word in the state or in the county where the transaction occurs. We know of no decisions upon this point with respect to partnerships, but it has frequently been decided with respect, to corporations that the purchase of property in one state by a corporation having its place of business in another state, to be shipped to the place of its domicile from the state in which it is purchased, does not constitute doing business in the latter state. (Jameson v. Simonds Saw Co.,
It was decided by the supreme court of the United States inSioux Remedy Co. v. Cope,
It follows that the court below erred in holding that the plaintiffs could not maintain the action under the circumstances stated.
The judgment is reversed.
Olney, J., Wilbur, J., Lennon, J., Sloane, J., Lawlor, J., and Angellotti, C. J., concurred.