*1 CO., Inc. HOWES S. v . CO. W. P. MILLING
No. 35275.
Supreme Oklahoma. Court of July 1954.
Rehearing Sept. Denied *2 January
on it. On mailed McGavren plaintiff on a the information and circulars by machine manufactured defendant purchase type recommended the a certain Wilcoxen, Muskogee, Banker, Bonds & size. Inclosed in the letter were order plaintiff for in error. blanks which McGavren be recommended filled out and mailed the defendant Wheeler, Gibson, Norman Mus- T. L. & him, care of McGavren. The machine was kogee, defendant in error. ordered in suggested, the manner for de- livery not later than McGavren JOHNSON, Chief Vice June. Justice. acknowledged receipt of the for- by P. Mill- brought action This is an W. warded it to the defendant. It was neces- corporation, plaintiff, Company, sary that accepted by the order be the de- defendants, McGavren against the Ward R. office, fendant at its home the machine to be Inc., Company, foreign and S. Howes shipped direct to the Previous to damages resulting order, explained the McGavren the situation alleged' warranty fitness of breach of to the defendant asked machine that the purchased from milling machinery certain guaranteed. reply, parties will be referred The defendants. wrote McGavren that guarantee it would they appeared trial court. the perform the machine to as represented. jury and resulted The was tried to a McGavren, months, ensuing During the plain- judgment in favor of in a verdict and defendant, gave collaborating with after only, against tiff and the one defendant S. plaintiff all instructions detailed perfected Company, who Howes has this the elevator and shuck construction having been appeal. judgment Verdict built these structures Plaintiff house. defendant, McGavren, other favor of the conformity There with the instructions. party as a he need further considered not be delay delivery of considerable The S. Howes litigation. and, shipment, machine before awas McGavren make an investi- defendant had in this state and service of domesticated pur- different routes for gation had summons was way pose determining the best and fastest every stage Secretary At of State. shipped directly from the ship. objected to proceeding, the defendant plaintiff, plant f. b. o. defendant’s the court it because it over Shortly early part arriving the of October. corporation. only That is the was a thereafter, Muskogee, was in Therefore, proposition presented here. being He the machine was installed. while necessary question determination plaintiff one of the officers asked said defendant was is whether or not in- the invoice had received. When business, 'business, had done this had, he that there formed remarked making legal it amenable to herein. purchase price was a discount if plaintiff organized pur- The for the immediately. paid A check therefor was pose constructing operating grain by plaintiff to written defendant and deliv- pur- all Muskogee, mill in Oklahoma. For ered to McGavren who forwarded it to said us, poses of case before all of acts He was to receive his sales defendant. year time, At that occurred in the purchase price. from the commission independent was an Ward R. McGavren broker, machinery mill dealing in on com- complete, After the installation was mission, place of put with his business Okla- operation, and, machine was previous not had City. hours, He had deal- home a few the shucks were set on fire The defendant. de- ings the friction and carried into the shuck purchasing a corn with cob and husk burning. sired while still resulting house The purchased mill separator. destroyed It had ma- other the shuck fire house. McGavren chinery through McGavren and ordered he notified and went Muskogee. separator, get there, was unable to delivery but again he was When machine was McGav- ire resulted. another started and 1.17 provide in effect immediately called ren “engaging report telephone the condition. transacting can business” within state Kansas salesman notified a then fendant process. sued and served When- *3 The he did. City investigate, which to question ever the has been raised wheth- of that, up- based wrote fendant then corporation’s er a activities within the to being sent report, were other fans meaning of these statutes constitutes “do- The trouble in the mill. be substituted ing (a business” term not defined stat- take offered and defendant not eliminated ute) this Court has held almost without ex- the plaintiff refused back. The the machine ception that the liable losses, troubles, and of its offer because process. 4 local For cases see Oklahoma re- and necessary for removal expenses Digest the Corporations, Re- filed This action was cases, machine. turn of the case, supra; cent Wills Interna- 26, April damages on recovery of the tional Shoe Co. v. State of Washington, 310, 154, 95, 326 66 161 U.S. 90 L.Ed. S.Ct. 1057; Equip- A.L.R. Austin from, Trailer cites, quotes in Error Plaintiff Jeter Cal.App.2d 376, 122 ment 265 130 P.2d upon the case of Wills principally relies 193, Kneeland v. Ethicon Suture Labora- Mineral 176 Okl. v. National tories, Inc., 211, Cal.App.2d 118 question wheth 257 There the P.2d 449. disposition indicate a definite to broad- foreign corporation er the undomesticated en the the term “doing of busi- the state doing within so business Analysis In Isaacs Doing ness”. “An of process and service of be in this state sued Business” 25 supra, Col.Law Review the we held that upon it. obtained Therein distinguished the “doing author business” quantity of quality, character and under legal purposes, namely, three may be within the state sufficient conducted process, taxation, qualification, subject to local degree activity required rising require yet be insufficient to multiple named. standard for out to take a license. “doing categorically business” stated readily a read will be seen from As be in 20 C.J.S., Corporations, the law § cases some of recent discussed case, and was recognized in the Wills (see Law articles Vol. leading Review supra. Review, 294 - 5 Vol. (1948); Okl.Law ; Review, (1946) 218-21 25 Col. Mich.Law argued the factual situa It is Review, (1925); Law Vol. Univ. an the instant indicates tion in (1949); 523-24 Vol. Chicago Law Review transaction, single or a transaction isolated Review, 215-16), of So.Cal.Law 26 Univ. nature, therefore, was not continuous meaning of subject of the dealing with “doing did constitute business” purpose making “doing for the business” State, subjecting defendant local corporation amenable to local argument is not process. Such based by which is no rule of thumb process, there justice. particular of a Courts reason may con made as to what be determination have over all dis state should transacting amount stitutes (or made putes arising out contracts depend upon the must Each case business. state, regardless within the performed) particular This, in facts. character of number of contracts of substance, holding in the Wills was the performed) made were which ap principle is case, supra. While this Moreover, the test as there. to what courts, it is proved foreign corpora will activities spe determining whether help in of little “qualitative” simply to suit tion “doing of such constitute cific activities “quantitative”. “mechanical” Marlow v. foreign corpora make the business” as to Milking D.C., Hinman Machine 7 F.R. process. tion liable to D. and cases cited therein. question is raised chief- In Oklahoma question was said that Therein statutes, 18 Okl.Stat.Ann. Title ly two “doing whether defendant was business”
(cid:127)658 place Washington invoiced at length (cid:127)not ot number transactions shipment, were collections time The defendant it was business. point. made from that None corporation whose there was a make col- machines, salesmen were authorized .agents milking solicited orders for lections contracts. or to enter corporation from shipped by facts, Upon Supreme Court those Its factory (cid:127)its state. located in another held that the Shoe Com- International agents purchasers how to advised with the in, with, pany’s contacts activities use, operate and sometimes the machines Washington the State were such repairs. There facts minor in that ‘doing it was business’ “doing held business” sufficient to constitute *4 state.” the hold (cid:127)within the substantiate state. To court,
ing, opinion, in said: the modern trend keeping with “ * * * The trend of modern judicial hold herein of action we that facts foreign corpo decisions is to hold the holding grounds disclose sufficient that limits of ration within more strict doing now, in Accountability courts. As local business within the state Supreme Rutledge Court process thereby legal amenable Justice Ap while in the Court of serving .held present pur rendering it jurisdictional Columbia, peals for the District poses. ‘ * very “mere little than Judgment affirmed. ’ * * * is .(cid:127)solicitation” ‘ corporation “pres render a WELCH, CORN, ARNOLD purposes.’ jurisdictional ent” Frene BLACKBIRD, JJ., concur. 1943, Cement 77 U.S. v. Louisville 511, 515, 129, 146 App.D.C. F.2d DAVISON, HALLEY, J., C. Su A.L.R. 926. The United States WILLIAMS, JJ., dissent. O’NEAL preme appears to have Court verified Co. State this in International Shoe v. DAVISON, (dissenting). Justice Washington, In that case the supra. opinion in the not concur I do defendant manufactured footwear in this majority case and desire of the court maintained no officein the Missouri and my I do express reasons therefor. Washington, where it State very broad rule therein agree employed 'been served and sued. meaning of the term adopted, defining the n eleven to thirteen salesmen in Wash “doing as used in 18 O.S.1951 business” supervision ington under the direct 472, do I the defendant herein nor think Louis, manager a sales (cid:127)control of St. doing business within this State under The salesmen residents Missouri. definition, broad or either whether restrict- n of and lived in, Washington. Their ed. principal activities were confined to years, State, Washington. many The salesmen showed the law of this For re situations, has garding such been that stated samples prospective customers and Cartridge case of Peters in the Harrell v. permanent rented or tem sometimes 872, L.R.A., 129 P. 36 Okl. sample buildings porary rooms N.S., wherein words of the Fed authority was Their limited hotels. quoted ap eral Circuit Court were samples ‘exhibiting their and solicit (cid:127)to proved, as follows : buyers, prospective from at orders “ prices appellant.’ fixed and on terms ‘Any provides law which that goods by were transmitted the de 'The orders sale acceptance through soliciting agents, Missouri office who take fendant’s approval orders at the home rejection and the merchandise was office,is doing business points o. b. shipped f. from outside void, is an because it purchasers interference Washington Washing interstate with commerce.’ Davis shipped & All merchandise ton.
059> Co., D.C., 7 Hinman Milking Machine Mfg. (C.C.), Dix Rankin Co. the- F.R.D. I do not believe F. 406.” Harrell ease case should and the Mills guide recognized That rule But, so be the- modified or overruled. posts enumerated for its court, think majority desire of I v. Na explained case of Wills clearly it should be to- so stated 193, 55 Okl. tional Mineral avoid much future confusion. opinion majority cited sup However, herein. does This last cited case in the makes no difference port expressed the views we now us whether follow before apparent bar, at in the case -adopt the inter- established rule or broad excerpt therefrom: following pretation majority opinion.. favored in the The defendant was not answerable to serv- barter, sale, largely “Business ice this case is State and no value, usually exchange things cited, analogous wherein the facts are to. property. is therefore ‘Doing’ those herein. pursuit. The engaging in such only the business involves not through A can act / *5 possession, ownership, or control of agents. officers and The deiendant stren- dealing property, but such functions uously agent denies that had proper- with others reference to through whom it was discretion, ty, the mak- the exercise of This brings business here. us to a deter- decisions, ing the execu- of business mination of whether or not McGavren acted It tion includes func- of contracts. agent as an for defendant. He was an- product, by marketing tions of ad- independent machinery dealing broker solicitation, and of col- vertising and products many manufacturers product. may It lecting for sold employee on an commission. He was not conservatively said that wherever an recognized agent -of His the defendant. important of these func- combination act, record, every by as disclosed being performed, tions agree for I the benefit of cannot ” * ** being done. relationship party that his either was that ' and, agent, certainly, an of defend- effect, has, adopted That rule ant. Plaintiff was in need of a certain- jurisdictions. majority of a business, machine. Because of numerous recently expressed in different ' him, plaintiff’s manager transactions with language the United States Court of help. sought Mc-Gavren’s He in- District, made Appeals the Tenth in the vestigation did find a machine he Steinway Majestic case of Amusement explana- thought suitable. He secured F.2d 18 A.L.R.2d as fol tory data and an order blank which he lows: plaintiff recom- forwarded on with his case must be determined on “Each type. as to size and mendation This was general rule is its own facts but that plaintiff requested the information ‘engaging to constitute transact- plaintiff, from him. further serve To he in the state so as to business’ completed suggested that the order be purposes per- present for found or him and he returned to would send it to service, corpora- sonal nonresident acceptance rejection. activity substantial, there must be tion’s agent. That did make him defendant’s regular distinguished continuous casual, single or plaintiff isolated acts.” His next act was when was re- quested designate the desired route of opinion By implication, the ma shipment. He worked that out for and with very adopts broad rule jority “ plaintiff and instructed ship defendant to ‘very little more than “mere solicitation” * * *’ n All over said route. mail order houses to render a express preference request buyer “present” corporatio jurisdictional such matters. After the appears, therein, machine de- purposes’”, which in a he reminded saving livered from the case quotation of Marlow v. discount, ington, if the way 326 U.S. S.Ct. could make 95, the facts were that: price paid within a limited L.Ed. purchase * “* * plaintiff’s check time. He mailed appellant employed eleven him mark did not fendant. These acts super- thirteen under direct salesmen agent. as defendant’s managers vision and control sales salesmen located St. Louis. These properly func- machine did not When the Washington; princi- their resided hand tion, Muskogee get first went to he pal activities were confined to that by plain- information, being called after state; they compensated condition, noti- he seeing the After tiff. commissions based the amount defendant, plaintiff otherwise which fied commissions their sales. The for each think that do not I have had do. would $31,000. Ap- year more than totaled agent an made him conduct pellant supplies its salesmen with line was not My is that conclusion samples, consisting one shoe each following statement agent and that an display pros- pair, they of a syllabus of the they pective purchasers. On occasion record, pnd unsupported is erroneous rooms, sample permanent rent for ex- to-wit: hibiting samples, buildings, in business “ * ** manufacturer, and the or rent rooms in hotels or business telephone long distance conver- after buildings temporarily purpose. broker its Oklahoma sation with is reimbursed The cost such rentals * ” agent) by appellant.” *6 case, therefore, approximately In the cited agent, the McGavren was not an Since employed dozen residents of the state were a only action of the defendant Oklahoma displaying full merchandise time for person only be the acts of who had to soliciting orders. salesman from agent Kansas was an —the investigate City sent to the fire. who was Equip- The case of Austin Trailer Jeter investigate only in this State was to His act Cal.App.2d ment P.2d report Under no to the defendant. readily distinguished from the case intrepretation could those acts be construed therein, analyzing at bar the facts as “doing of as the business”. syllabus, stated the 6th as follows: person majority opinion had solicited orders states the true test “Where activities “as to what will the for- at behest corporation kept 'qualitative’ merchandise with- eign to suit ‘quantitative’. simply in state and had filled orders from ‘mechanical’ or stock, partially contri- Milking Hinman and had Marlow v. Machine payment person’s D.C., of such busi- every In buted 7 F.R.D. rental, judi- there had been a ness majority case cited wherein corporation was determination that cial attempted, within the state so as doing business business within held to process, to service of to be amenable state, corporation had one corporation thereafter had dis- even agents employees actively resident keeping stock within the state continued necessary function in the some performing payments toward had discontinued case, only act done the instant In state. rental, in view person’s of fact such agent by an continued to re- that it had thereafter down after came salesman City Kansas person for solicitation of or- tain such report. ders, corporation look and ‘doing busi- fire state was amen- ness’ within the cited the cases Turning now process.” to service of able case has the Wills opinion, is true of the case of Knee The same In the case of distinguished. hereinabove Laboratories, Inc., Ethicon Suture land v. State Wash- Co. v. Shoe International only upon approval of the ‘block- defendant 727, wherein Cal.App.2d 211, 257 consideration man’ in the area and after is, as follows: syllabus 2nd Thus, the matter the ‘blockman.’ corporation engaged “Foreign apparent was the seems that the ‘blockman’ supplies, whose surgical manufacture of respect practices determiner with credit promotion sales employees, engaged in credit dealers, to his least when at every- just about did work within also first extended to him. Other duties agents full-fledged sales thing that performed by Plain- the blockmen. orders, except taking of might do example, tiffs’ Exhibit is a letter of sales and collection livery goods, directing pick up one one blockman to could, doing violence price, without signs the defendant’s from certain loca- requirements, be sub- to due tion and to sell some ‘endeavor to it to of court within jurisdiction jected to ” other dealer.’ state.” I have been unable to find case from Milking Hinman Marlow v. The case of any jurisdiction, including those cited in the up- Co., supra, primarily relied Machine majority opinion, comparable wherein facts supporting the quoted from on and to those herein identified Therein, the case at bar. majority view in doing business in the state even where corporation em- performed by regular agent acts were workers, ployed number of full time employee. case, the instant Minnesota, state to hired said residents of employee. independent was no He was an They sold defendant’s in said work state. broker whom asked to recommend dealers, product their “duties ex- but suitable machine. merely beyond soliciting orders. tended far Not particu- should the courts of a They Their more than mere salesmen. lar disputes state “have over all arranging with the dealers duties included arising out of contracts to be for, encouraging, advertising performed) (as within the state” stated in mats those dealer. Defendant furnished majority opinion) they but do have such charge. The block- advertisements free Here, jurisdiction. however, the contract *7 and aided dealers who men also advised was made in the State of New York when units, help up milking setting needed accepted the order. It was helped place operation them in performed in the State of New York when purchasing They farms of those units. the merchandise was delivered to the carri- required to make certain that er, delivery pointed As repair station, used the authorized dealers above, not, out I need in the instant case the dealer understood and and that used adopted, take issue with the rule regard- factory repair At service. various times is, less of how broad it because it could blockmen, pursuant employment to their have no here. An out-of-state performed contract with even agent coming inspect into Oklahoma to repairs minor and alterations and service machinery installation does not constitute milking They machines. also of business his cor- aid shipping dealers in poration employer who had sold the machine repair equipment requiring work York, and, there, in New delivered it to the factory. The evidence further shows that delivery carrier for purchaser. F.O.B. to the arranged dealerships the blockmen for new not think the trial juris- I do court had existing sometimes cancelled ones. defendant, and, therefore, diction The record does not show that defendant respectfully dissent. activities, objected of these or did Likewise, not authorize them. the ‘block- I am authorized to state that the dis- senting views in this are men’ determined the dealers who should re- concurred HALLEY, J., and O’NEAL C. is, privileges. ceive That credit .credit WILLIAMS, privileges were extended to the dealers JJ.