274 Mass. 281 | Mass. | 1931
This is an action of contract brought by the plaintiff, an Illinois corporation, against the defendant to recover a sum of money for work done and .material furnished in accordance with the stipulations of a contract between them. The defendant filed a plea in abatement to the effect that the plaintiff corporation is one which comes within the provisions of G. L. c. 181, § 3, and that the plaintiff has not complied with the provisions of G. L. c. 181, § 5, relating to the qualification and right of foreign corporations to do business in this Commonwealth. At the hearing the plaintiff conceded “ that it is an Illinois corporation and that it has not complied with the requirements of G. L. c. 181, § 3, but contended that there was no necessity for such compliance in its case.” At the close of the evidence the plaintiff and defendant respectively filed requests for rulings of law. The judge filed a statement of his findings and rulings and found for the defendant upon the plea in abatement.
The case is before this court on the plaintiff’s exceptions to the giving of four requests for rulings submitted by the defendant, to the judge’s denial of the plaintiff’s requests for rulings numbered 1, 2, 3, 4, 7 and 10, to the denial of its motion for a finding in its favor as matter of law, and to the following rulings of the judge: “ 1. That the plaintiff is a corporation coming within the provisions of G. L. c. 181, § 3. 2. That the plaintiff had a usual place of business within this Commonwealth at the time and prior to the time when the contract in suit was made and this action begun. 3. That the plaintiff was transacting business within this Commonwealth at the time and prior to the time when the contract in suit was made and this action begun. 4. That said place of business was not maintained solely for the transaction of interstate commerce. 5. That the plaintiff has continued to transact business within the Common
At the hearing the defendant called as a witness Robert H. Wilder and introduced in evidence certain documents. No other evidence was offered by either party. From such evidence it appeared that the plaintiff has its principal office at Chicago, Illinois, and has factories in Chicago and in Trenton, New Jersey. It manufactures and sells fire brick, called Plibrico, for the lining of boilers. It markets its product in a section of New England through the medium of the Grant-Wilder Engineering Company, a copartnership, with offices in Boston, Cambridge and elsewhere. The relations between the plaintiff and the Grant-Wilder Engineering Company are governed by a contract dated June 30, 1928. By the terms of the contract the plaintiff is called therein the “ Company” and the Grant-Wilder Engineering Company is “ designated as the Distributor.” In return for a specified agreement of the company to pay the distributor a certain sum by way of a discount or commission on the sales of Plibrico, the distributor agreed, during the continuance of the contract, to solicit trade for the product of the company in the territory assigned to the distributor and to pay and discharge all office and travelling expenses incurred by it or its agents in connection with the sale or marketing of the product of the company, and all charges incurred in the handling of the product for local distribution. The distributor also agreed “ to carry the name . . . [of the company] in the local telephone directory and on . . . [the] office door [of the distributor] at his own expense.” Further provisions of the agreement are: “ 3. Said Distributor further agrees to abide by all the rules, selling conditions and terms obtaining or maintained in the usual conduct of the business of said Company, and all orders taken by him or his agents shall be subject to the acceptance by said Company as to
It is to be noted that there is no provision in the contract which in terms requires the distributor to pay the company any sums at any time for the company’s products sent f. o. b. Trenton to the distributor, and it is to be further noted that there is nothing in the contract which requires any action by the distributor as respects unsold or undisposed of Plibrico product. The distributor company, speaking through Wilder, testified in substance that in exceptional cases it handled in Cambridge collections when they became due for the Plibrico materials, and that it did so in the case of the defendant because the distributor “ was interested in getting collection,” that is, in getting the amount agreed to be paid it for services under paragraph 7 of the agreement, and in receiving the amount due it for labor and services and for materials it had furnished to the customer, all of which were included in an entire amount billed to the customer from the Chicago office of the company.
Because of the regularity of the business, of the existence of storage warehouses, and of the fact that the distributor was an agent to sell and at times to collect, the case at bar falls within the class of decisions of which the following are illustrations: Attorney General v. Electric Storage Battery Co. 188 Mass. 239, 241, Marconi Wireless Telegraph Co. of America v. Commonwealth, 218 Mass. 558, 569, Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379, International Textbook Co. v. Pigg, 217 U. S. 91, Cochran Box & Manuf. Co. Inc. v. Monroe Binder Board Co. 197 App. Div. (N. Y.) 221; affirmed 232 N. Y. 503; and is distinguished from Bank of America v. Whitney Central National Bank, 261 U. S. 171, Butler Brothers Shoe Co. v. United States Rubber Co. 156 Fed. Rep. 1 (certiorari denied 212 U. S. 577), Cannon Manuf. Co. v. Cudahy Packing Co. 267 U. S. 333, Atlanta v. York Manuf. Co. 155 Ga. 33, I. J. Cooper Rubber Co. v. Johnson, 133 Tenn. 562,
A consideration of all the facts, some of which are not stated supra, leads irresistibly to the conclusion that the trial judge was right in finding and ruling “that the plaintiff had a usual place of business and was transacting business within the Commonwealth at and prior to the time when such contract was made and this action begun; that said place of business was not maintained solely for the transaction of interstate commerce; that it has continued to transact business within the Commonwealth without complying with the' requirements of” G. L. c. 181, §§ 3, 5. We find no error in the refusal to give the plaintiff’s requests for rulings or in those which were given. It results that the finding for the defendant upon the plea in abatement must be affirmed.
So ordered.