Parsons-Willis Lumber Co. v. Stuart

182 F. 779 | 5th Cir. | 1910

TOULMIN, District Judge

(after stating the facts as above). “The principle that the right of a foreign corporation to engage in business within a state other than that of its creation, depends solely upon the will of such other state, has been long settled.” Among the exceptions to this rule is, where the business of the foreign corporation constitutes interstate commerce, and is, therefore, solely within the'paramount authority of Congress. Hooper v. California, 155 U. S. 652, 15 Sup. Ct. 207, 39 L. Ed. 297. A foreign corporation has the right to sell articles of commerce anywhere in Alabama, and to ship them to the purchasers, and any attempt to- interfere with such business would be an interference with interstate commerce. Nelms v. Edinburg-American Land Mortg. Co., 92 Ala. 161, 9 South, 141. The converse of the proposition must also be true, namely, that a foreign corporation may buy, or make a contract with a citizen of Alabama to buy, articles of commerce — subjects of trade and barter offered in the market. Ware v. Hamilton Brown Shoe Co., 92 Ala. 145, 9 South. 136. “The making of a contract in Colorado to manufacture certain machinery in Ohio, to be delivered for transportation to the purchasers in Colorado, was commerce, and within the exclusive jurisdiction of Congress.” Cooper Manfg. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137. In Robbins v. Shelby County Taxing District, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694, it was held, ".that business of selling goods 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 commerce.” We can perceive no difference in manufacturing and selling machinery by a manufacturer in Ohio for, and to be delivered for transportation to, a purchaser in Colorado, and in manufacturing and selling lumber in Alabama, tc a purchaser in Kentucky, or lumber to be shipped by the seller on orders of the purchaser to Kentucky, or to any other point outside the state of Alabama.

However this may be, the contract involved in this case was not ; made in Alabama, but was made in Kentucky. It did not provide for j the doing by the purchaser (appellant here) of anything in Alabama I which constituted the doing of business in that state; and the evidence i fails to show that in carrying out the contract the appellant did any- ■ thing in Alabama which constituted the doing of business • within the meaning, or violative of the laws of the state. There is no presumption that the parties made an illegall contract, or contemplated an illegal transaction. No lumber was sold by the purchaser in this case and shipped on his order to any point in Alabama until several months subsequent to the making of the contract, and subsequent to his compliance with the laws in reference to doing business in the state by foreign corporations. Shipments were frequently made to points out of the state prior to such compliance, but we find no evidence that lumber was stored and kept on hand for sale in Alabama. Rumber, under the terms of the contract, was in some instances stacked to dry out before shipment, and when ordered shipped was loaded by the seller (Conecuh Pine Rumber & Manfg. Co.) f. o. b. cars, in accordance with the contract. Such transactions are constantly taking place in this state, as, for instance, the manufacture and sale by cotton mills of their product to foreign corporations; also like transactions in lumber and naval stores. We do not think it can he justly contended that the purchasers are amenable to the laws of the state invoked in this case.

But it is contended here that the appellant had an agent in Alabama, who inspected the lumber that was manufactured and stacked by the seller, and that this was doing or transacting business in this state within the meaning of its said laws. We cannot agree with this contention. There was no provision in the contract in reference to said inspection, hut there was a stipulation as to sizes, lengths, and prices of the lumber contracted for, and it may well be that the purchaser, as incidental to his contract, desired to have the lumber which he was receiving under his purchase inspected by his agent that he might be duly advised if the sizes, lengths, etc., were coming up to the stipulations of his contract.

We think the court below erred in holding the contract unenforceable, and in disallowing the claim of the appellant against the bankrupt. The decree appealed from is reversed and the cause remanded with instructions to allow appellant’s claim.