27 S.D. 123 | S.D. | 1911
This is an appeal by the plaintiff from a judgment entered upon a directed verdict in favor of the defendant. The action was instituted by the plaintiff to recover of the defendant the sum of $8o alleged to be due for a bill of merchandise sold and delivered to defendant. To the complaint the defendant interposed an answer making the statutory denial as to' the incorporation of the plaintiff, and alleges: (I) That, if plaintiff is a corporation, it was organized and is a corporation existing under the laws of Iowa, and that plaintiff has not filed a certified copy of its articles of incorporation with the Secretary of State of South Dakota, and has not filed an appointment of a resident agent in the state of South Dakota, and has not appointed a resident agent for the state of South Dakota, and that said plaintiff has not complied with the laws of this state governing foreign corporations relative to the filing of its articles of incorporation and the appointment of a resident agent, and has no right to maintain an action within this state by reason of the facts aforesaid. (2) Further answering said complaint, this defendant alleges that he entered into a written contract or agreement with the plaintiff on or about the 12th day of July, 1909, at Redfield, Spink county, S. D.,
On the trial the plaintiff offered in evidence the contract alleged to have been executed on the part of the defendant, which was admitted by the court over the defendant’s objection, and which, in substance, is as follows: “Agreement, made and entered into this 12th day of July, 1909, by and between Sioux Remedy Company, of Algona, Iowa, party of the first part, and Neis Rindgren, of Redfield, county of Spink, state of South Dakota, second party, witnesseth: That party of the first pail agrees to ship unto second party, as soon as convenient, the goods hereafter set out; and to refill this order as often as the company sees fit to do so, unless this agreement is canceled by mutual consent of both parties.
It is contended by the appellant that this contract of sale constitutes interstate commerce within the clause of the Constitu
We add -the following cases bearing upon this question: Herman Bros. Co. v. Nasiacos, 46 Colo. 208, 103 Pac. 301; McNaughton Co. v. McGirl, 20 Mont. 124, 49 Pac. 651, 38 L. R. A. 367, 63 Am. St. Rep. 610; Ware v. Hamilton Brown Shoe Co., 92 Ala. 145, 9 South. 136; Rex Buggy Co. v. Dinneen, 23 S. D. 474, 122 N. W. 433; Colt & Co. v. Sutton, 102 Mich. 324, 60 N. W. 690, 25 L. R. A. 819; Atlas Engine Works v. Parkinson (D. C.) 161 Fed. 223; Greek-Am. Sponge Co. v. Richardson Drug Co., 124 Wis. 469, 102 N. W. 888, 109 Am. St. Rep. 961;
The respondent calls our attention to the case of Reed v. Todd, 127 N. W. 527, as holding a contrary doctrine, but the question we are now considering did not arise in that case, and the court in its opinion is careful to say that: “In all cases arising since its amendment -the statute has been given that interpretation (that the corporation must comply with the laws of the state), and in all such cases not affected by the interstate commerce clause of the federal Constitution it has been given that effect.” Clearly under the decisions of this court and of the state and federal courts the provisions of our law requiring foreign corporations to file their articles of incorporation and the appointment -of a resident agent cannot be held to apply to corporations engaged in interstate commerce, and hence, assuming in the case at bar that the plaintiff was a foreign corporation and was engaged in the business of selling merchandise, it cannot be required by any law of this state to file its articles of incorporation or appoint a resident agent before maintaining an action -in the courts of this state. Rex Buggy Co. v. Dinneen, supra.
This brings us to the more important question as to the nature of -the contract under which the plaintiff seeks t-o recover in this action. It is contended by the appellant that under, the clause in the contract which provides, “Said second party agrees
It is contended, however, by the respondent that the contract introduced in evidence by the plaintiff is not a contract of sale, but is simply a contract of agency, wherein the factor received the goods and merchandise to sell for his consignor at a fixed price by the consignor, and that, therefore, the defendant was simply acting as agent of the plaintiff, and was not liable to pay for the goods shipped to him until he had sold and disposed of the same and received the consideration therefor. We are inclined to take .the view that the defendant is right in his contention that the contract in this case is a contract of agency, and not of sale. Section 1487 of the Civil Code provides as follows: “The factor is an agent who, in the pursuit of an independent calling, is employed by another to sell property for him, and is vested by the latter with the possession or control of the property, or authorized to receive payment therefor from the purchaser.” Section 1706, Civ. Code, provides as follows: “A factor is an agent who is employed to buy or sell property in his own- name, and who is intrusted by his principal with the possession thereof, as defined in section 1487.”
If will be observed that the second paragraph of the contract provides as follows: “That party of the first part agrees to ship unto second party, as soon as convenient, the goods hereafter set out; and to refill this order as often as the company sees fit to do so, unless this agreement is canceled by mutual consent of both parties. Said second party agrees to receive said goods, and to sell the same at and for the retail prices as follows.” It will be observed that this is simply a contract of agency wherein the factor receives the goods and merchandise to sell for his consignor at prices fixed by the consignor. It is a continuing contract wherein the defendant acts as the factor, not only for one order,
It clearly appears from the. -the uncontradicted testimony of the defendant that the clause in the contract relied upon by the appellant for a recovery in this action as construed by it does not carry out the -intention of the parties, and never was in fact assented to by the defendant. The defendant testified that he was a shoemaker; that he had been in this country about 2^2 years; that he came from Sweden, and -that he does not understand the English language very well; -that there was an old lady came to see him about these goods about the -time he signed the contract; that she came in that day and asked him if -that com
This view of the contract is more favorable to- the plaintiff than the theory that the agent intentionally misrepresented the nature of the contract to the defendant, as such a theory would lead to the conclusion that the plaintiff by means of -this clause in the contract intended it as a trap -to defraud the defendant, and to secure from him .the payment for the goods consigned to him for sale without regard .to the value of the goods or any sales made by him under his consignment. The evidence was also- clearly admissible under the provisions of section 1256, which provides that a contract may be explained by reference to the circumstances under .which it was made and the matter to which it relates. It was
If seems, therefore, .too clear for argument that the clause in the contract relied on as construed by the plaintiff does not express the intention of the parties as disclosed by the evidence of the defendant and by the statement made by the plaintiff’s agent, and that it must therefore be disregarded so far as it purports to require the defendant to pay for the goods consigned to him prior to their sale by him, and that the same never became binding or obligatory upon the defendant as construed by the plaintiff. Again, it was competent for the defendant to prove the inducement held out to 'him by the plaintiff through its agent, resulting in the execution of the contract. These inducements were, it will be observed, that the defendant should have the right to sell the goods, receive the profits, -and should only be liable to the plaintiff for the plaintiff’s proportionate share of their value when sold by the defendant, and that there was no agreement on the part of the defendant at any time that he should pay for the goods consigned to him until he should sell the same.
In De Pue v. McIntosh, 127 N. W. 532, this court in discussing a similar question says, after quoting the provisions of the Code providing that “ ‘the execution of a contract in writing, whether the law requires It to be written or not, supersedes all of the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument,’ nevertheless, as contended by the appellant, there are exceptions to the rule. And one of the exceptions seems to be that agreements or representations made prior to the written contract under which the party was induced to sign the contract may be shown; in other words, where t'he parol contemporaneous agreement was the
As it appears by the undisputed evidence that the defendant at the time this action was commenced had made no sales and received no moneys on account of the goods consigned to him, therefore the plaintiff failed to prove any cause of action against the defendant, and the court was clearly right in directing a verdict in favor of the defendant.
The judgment of the circuit court and order denying a new trial are affirmed.