*1 given plaintiff resulted be the instructions It cannot said thirty-three being damages given. The deceased was in excessive earning years expectancy same, was age of about the and had an to the per $200 month per $300 month and contributed about about is’moderate and family. The verdict support of the amount of the legitimate no and there is reason to believe that within limits jury damages. improper allowed given appel- made criticisms of the instructions are
Other same, lant, but, we think it would serve while we have examined prolong this in a discussion thereof. no decision purpose useful fairly appears case to have been tried no reversible error Ferguson will judgment, therefore, affirmed. is found. The Hyde, CC., concur. by Sturgis, C., foregoing adopted opinion
PER CURIAM: The concur, Hays, judges except J., opinion of the court. All the absent. A. v. Yarbrough, Appellant, W.
J. W. Incor- (2d) S. R. W. L. Trustee. 70 Corporation, and Ward, porated, 1055. One, April 19, 1934.
Division *2 Sharon J. Mayes Pate and Von appellant. *3 respondents.
Ward & Beeves *5 Coun- FERGUSON, Pemiscot plaintiff C. The at Steele in resided ty, engáged, many years, Missouri. -the period He over a buyer mercantile business in a and dealer county and as cotton, years raising, buying he and For also selling cotton. several Defendant, Gage owned Com- operated gin. and a A. and cotton W. pany, foreign Incorporated, corporation, incor- is a nonresident or porated under the laws of authorized the State Tennessee merchant engaged carrying or a cotton factor on the business of A busi- place Memphis, with its Tennessee. office and of business at years period arrangement, ness a of ten continued over whereby more, plain- plaintiff Gage Company & existed between cotton dealer carrying tiff on of his business Gage through, & marketed to, his cotton merchant plain- In factors, Memphis, as cotton Tennessee. $10,000, notes, $8000 and one for promissory tiff one executed two a deed executed Gage Company & at the same time payable securing 'the County, trust, Pemiscot property real situate in beneficiary being there- notes, Gage Company payment said & “cotton and a provisions deed of trust said in. The terms and’ time the same date parties at into contract” entered something of the transaction, as well as part same and. as be them, hereinafter will history dealing! course of fully more stated.
The. secured by indebtedness being past said deed of trust due and unpaid Gage Company & caused com proceedings be menced to brought foreclose the deed Whereupon plaintiff of trust. seeking suit enjoin alleging and restrain such foreclosure notes and deed of trust that Gage Company “in void-for procuring said of trust plaintiff from . . . deed notes doing business in this State it was incorporated for which under the laws corporation and that said “was authorized not Tennessee” of licensed wholly to do business . '.' this State . and had failed to comply foreign with the laws of this State cor relative porations doing and in no this State fact at time has said Gage defendant W. A. & Company, Incorporated, complied with súch laws.” The petition states, then “that if said trust is valid deed of Gage. plaintiff Company part does owe” “said notes or thereof; in delivery said execution and' since for sale time to time strument and has delivered notes quantities large “to to said defendant” business transac according be sold to instructions of many have plaintiff defendant since then tions between said been complete numerous; kept that said .to have and. defendant claims plaintiff since record of between it and all the business transactions delivery *6 bimself and de all the between said of transactions record business execution; Gage & and de before the Company “since or fendant” livery Gage Company “fails notes;” & of said instrument and for cotton delivered properly plaintiff refuses account to and damages to.plaintiff for plaintiff to it as aforesaid” and “is indebted his said ac $10,000 to sell in the sum of or more failure cording weights plaintiff of and therefore to true or the instructions against prosecute said de plaintiff- would have a counterclaim to Gage Company company upon plaintiff “should sue fendant” said of plaintiff powerless said but to offset said matter counter notes is against trustee proceedings said of said to fore *7 trust; of plaintiff and asserts that with were not the transactions required such'as out a license to do that defendant “take in State.” or that paid denied that notes been this It is the have "is “plaintiff not indebted to reason of said or defendant notes” any defendant to sell held . . . the that “failed for plaintiff upon request plaintiff of sell same.”
On trial of cause plain- the the the business transactions between "covering tiff period years and defendant a of four approximately preceding July 1, 1929, accounting next were examined and made. found; Gage Company foreign corporation is a court that “not State;” mortgage in licensed to do business this that notes the and petition given in this described the made State but were of transaction interstate business and same are and therefore valid State; according eán the ac- evidence, be enforced “that Gage counts, boobs A. and records the defendant "W. and Com- Gage pany Company A. plaintiff owed defendant balance "W.- $15,518.81 July, day 1929, on said notes first and that accounts, correct, except said boobs true and and records are as to the-charge against plaintiff commissions, $7859.12 which the court finds to be excessive finds and unreasonable and that the de- Gage A. charge plaintiff W. was entitled fendant commissions, to-wit, being sum for of $3500, reasonable the sum a. plaintiff per defendant, bale for the cotton sold said and there- $1 court finds the true and fore the that correct balance due un- $11,209.69, paid said notes is interest thereon at the rate day July, Judg- per per of six cent annum from first 1929.” temporary injunction . ment’ was then entered: “that . . dissolved; plaintiff pay Gage that "W.A. Company, defendant $11,209.69 notes, being due balance on said with interest thereon per per annum, six day July, the rate of cent from 1st payment defendant, of said said balance to upon agent attorneys "W. or A. the defendants ' selling enjoined property are described deed petition forth in trust set said notes and deed of ’’ paid fully satisfied. shall be considered trust - joint case appealed have and the parties Both comes here on the assigns (1) finding the¡ appeal. "The as error of the trial the notes and deed of trust are valid court enforceable and “said deed that under the evidence of trust and contends notes were foreign ground corporation doing defendant a busi vbid'-on being qualified licensed Or in "this State without do business ness finding “judgment (2) that the iri this State” and n question notes defendant on the the sum Y/as:liable Defendant, $11,209.12, as against evidence.” sum, was against “erred, charging (1) in back appellant, claims the trial court (2) alleged overcharge $4309.12i as commission” defendant at allowing due “in not ten cent of the amount defendant per torney’s fee.”
Manifestly insistence that plaintiff’s must rule we first question defendant, foreign taking the notes and deed of trust doing State and since it admitted corporation, was business in this complied prescribing the defendant had not with our statutes corporations may do business in conditions on which of other States (Secs. 1929) 4598-4599, R. S. and deed of trust this State notes requires a statement of facts are void and unenforceable. This operated in which defendant its business as a cot manner dealing or merchant and transactions and course ton factor *8 Gage admitted, stated, arose. As and & Com the deed of trust and organized, charter, in pany corporation a as stated its is Tennessee carrying of merchants and cotton purpose “for of trade selling factors, engaged buying: in the of and and business cotton making on commission otherwise and advances to mer cotton seed or growers money, planters and or of cotton in chants other either controlling handling property purpose of merchandise or ’’ place Memphis, at market. Its situs and of business of same on the is large Tennessee, corps maintains warehouses and a of where it by weighers inspectors. shipped Cotton to it to be handled it and a in the and sold as directed as cotton factor was stored warehouses employed and by “sample salesmen maintained the owners. It ’’ offering which samples in which it was for sale rooms cotton inspec Memphis market were exhibited for examination and on the complete An maintained a buyers. officewas and prospective tion n kept. customers was This affords record transactions with its place Memphis. general description its at a brief and clients, growers, it its customers or cotton Cotton was to Arkansas, buyers dealers, Missouri, Kentucky, Mississippi, and Gage Company Tennessee. stored cotton its Louisiana and as and or held it for sale when ordered directed warehouses^ and carrying In looked after the ship on the business the owners. unloading Memphis; paid and the advanced and the cotton ment of freight thereon; “freight rebates;” collected at the insurance weighing inspection; samples from took the bale to the tended rooms; by correspondence, its advised sales exhibited same sales; prices to the owners as telephone telegraph with reports memoranda, covering and statements the owners furnished each, charged for such services its sale and customers shipment To per half cent on sales made. increase- two and a commission of procúre provide shipment up business and build and. of cotton to it or time, Gate & would loan Company, from time to money advance growers to dealers cotton customers who assisting the several by way states these mentioned. This was necessary buy capital merchants or to provide dealers to through market cotton or season. finance his business the cotton It was the practice making! require custom or these advances the customer agreed principal upon execute a note for the sum as advancement and mortgage crops secure same real question property mortgage, herein, as the one in does specified provided Gage ship the customer would & Com- pany Memphis, specified quantity minimum of cotton which was fixed anat ample amount the-value of which would be and more than pay sufficient to the- security advancement thus afford therefor. mortgage was so drawn as to also secure further advances money might be made in addition to principal sum! provision the note with shipment quantities for the of additional cotton, on a security ratio therein fixed as for such additional sums might be advanced. In connection mortgage with the note and customary it was to also take what is denominated a cotton contract whereby agreed the customer and bound ship himself to Company stated amounts conformity of cotton in pro- with and as for) in mortgage. Gage vided & Company purport did not money loan as an engage business, investment or such, loaning money. manager, E. Its credit E. Whitner testified: “We money loaning business; only are not in the money reason we loan in, consigning consideration of the borrower his cotton to us at Memphis to be handled us on commission. We had that under- standing every money we Money one that loaned to. was loaned *9 in agreement consideration for the ship to cotton to us.” The amount provided of the advance thus immediately for was not paid in over full given to the customer but he was upon credit therefor Gage Company books of & and as the customer needed in funds carrying his on cotton business would upon Gage he draw drafts & Company accepted paid which by and at Memphis. Gage it & Conip'any did not maintain or have an office place of business or agent employee in this State nor did buy it or sell cotton in this State. Such advances as were -made to its customers in this State arranged agreed upon by correspondence were either for and or the Memphis upon credit man officewould call the customer and n years For discuss the matter. some six or seven prior plain- 1926 to doing Gage been business with the defendant tiff had & receiving indicated, the manner above advances from pur- them and agreement shipping to an so to do them storage cotton for suant and commission, by them, place their business, sale on at of Memphis. continuing maintained active and account Gage Plaintiff & extending over a Company. period many years This of account rep- shipment plain- resented the transactions them bad between tiff and the ad- Gage of cotton to & commission Company for. sale on charged expenses vances made and commissions company against plaintiff. dealing had In this course of continuance of in- many existed between deed of trust years them for the notes and Missouri, August Steele, volved herein date of were executed at under ; n being November 28, $10,000 payable for the note due 1, 1926, January 1, 1927, after $8000 after note on date. date in Pemiscot property is The described the deed trust all situate The; existing in- County, refers a then Missouri. deed trust to though plaintiff Gage Compaq to the amount there- debtedness specified describing of is that after notes is stated rep- the instrument is executed consideration indebtedness Gage agreement Company .the “to resented said notes and money supplies (plaintiff) him make advances of to between present date until this instrument is full and can- paid payment and to of the notes described celed record” secure Gage Company said plaintiff’s “present indebtedness to may him now and well the advances that it make to as paid provides is The this instrument in full.” deed trust until maturity pay plaintiff that fail “said at and said *10 specifically The cotton contract merchants.” mentions commission for 400 provides but it the sale of the $8000 for bales note only the agrees ship & Company plaintiff com- which cotton proceeds company thereof and that merchants mission storage charges said on cotton “and eommis-' first.pay” “shall selling;” “secondly, sion for additional sum advanced me pay any ‘ ’’ ‘ ” by by note; “. company may the said which be secured thirdly, any storage pay I fail and commission on cotton which ship agreed; fourthly pro- apply as above the remainder of the payments promissory ceeds of said cotton or other to the note above I charged. mentioned or to other debit with which W. stand A. Gage Co., Inc., having right, change option, apply at their or application payments reapplication payments.” or make Other provisions shipment contained the deed of trust as to of additional $20 cotton at the rate of one bale for each additional advancement charged by plaintiff company made and are also set out prevailing price contract. At the then the market value of bales notes, “more than was two deed $30,000.” of trust and the date, cotton contract were executed as of the same seem to arrangement have been one transaction and an to constitute between parties whereby making consideration of defendant advance- thereby ment as provided plaintiff for ship to defendant Memphis by to be there handled and sold init course of business as cotton factor. The various instruments prepared, State, dated and executed in this sent company office of the at'Memphis approval, approved were there and the deed of trust stated, was then recorded. As we money have advanced paid thereafter Memphis, out time, defendant from time to by plaintiff. drafts drawn Separating segregating or taking the execution and of the notes and deed of trust from they the transactions out which arise they component are a part seems to direct his argument to proposition that said instruments are Missouri con-’ tracts and that subscribing the mere act executing same acceptance Missouri and the thereof defendant constitutes' doing of business in defendant, this State foreign corpora- tion, within meaning of our statutes. But when we consider the nature of the business carried on defendant, the manner thereof and the substance of the whole transaction out of which the notes and deed of trust they arise and with which immediately are and. directly connected it is obvious that the instruments do not evidence represent growing debts out of business done or carried on they defendant this State nor do contemplate provide doing by defendant; of business this State rather the whole and dealing continuous course of and defendant particular phase thereof taking involved in of the notes and deed of appears trust to have been the carrying transaction and of-business of interstate character and therefore not within the purview the statutes which invokes. The notes and deed question of trust- in being to, incidental an appropriate part of and inseparably linked with interstate commercial transactions must
1157 legitimate noneom- notwithstanding treated and valid defendant’s pliance requirements with the State a state statute statutes for the governing doing foreign corporation a within are applicable corporation State not to transactions such [Yerxa, Randazzo interstate v. commerce. Thurston Andrews Mfg. Co., 20; Warming Macaroni 315 927, Mo. 288 S. W. Hess 217 Ventilating Burlington Co., 163, Co. 280 v. Grain Elevator Mo. 493; Security Simmons, 2, W. 251 S. W. S. State Bank v. 157 Mo. 585; 397, 229 129 S. W. Gillespie, International Text-Book Co. v. Mo. 922; Emory 40 (Mo. (2d) General App.), Co. v. S. W. Excavator 467, 493; 490; Watson, J. Colt Co. 215 247 W. App. B. v. S. Mo. 285; Mfg. Percha Co. 201 Lehrack, App. 550, Gutta v. Mo. 214.S. W. Holloway, 140, The R. 182 168 App. J. Watkins Medical Co. v. Mo. Packing S. 290;W. Dinuba Farmers’ Union Co. v. M. Anderson J. Rogers 1036; Mo. 182 Co., App. 236,
Grocer 193 S. W. Union Iron v. Co., Foundry 100; 167 150 W. App. 228, Mo. S. German American Smith, 878; Bank 202 Mo. 208 W. App. 133, v. S. Butler Shoe Bros. 1; Co., Fed. Co. v. United States Rubber 156 Text- International Pigg, 91; Milling 217 U. Book Co. v. S. Dahnke-Walker Co. v. 282; Co., 257 S. v. 258 Bondurant, Lemke Farmers’ Grain U. S. U. 50; 493; 282 46 Brewster, Co., U. S. Palmer v. Aeolian Fed. Furst v. Milling Company v. (2d) Bondurant, Dahnke-Walker 746.] damages U. was an aetion to recover for breach of contract S. 14,000 delivery a crop sale and of wheat estimated bushels. corporation, operated mill at Union plaintiff,
The Tennessee a flour Hickman, resided City, Kentucky, that State. Defendant vicinity. farming engaged in in that Plaintiff and defendant entered Kentucky, Kentucky Hickman, contract, into a contract at where agreed purchase defendant’s to sell by defendant Delivery was to be board the stipulated price. at a made wheat Hickman, Kentucky. Plaintiff intended carrier at cars of common crop A part small mill in Tennessee. wheat to its ship \yas delivery of the remainder refused. agreed but was delivered as several cents delivery had come to be worth wheat time At the brought The action was price. contract more per bushel than interposed plain A Kentucky. defense court in a state Kentucky fact, with a was the statute complied, as tiff had not might corporations of other states on which the conditions prescribing en the contract therefore and that not in that State do business replied that the transaction was interstate Plaintiff forceable. Kentucky apply. invoked did not statute therefore commerce apply did transaction statute that the held court trial judgment,, verdict and. but had and'the question “conceding invalidity Appeals while Kentucky-Court held the interstate commerce respects transactions trans statute ap- and .therefore commerce” was, in such statute.was .not action States United plicable. error, went, The ease a writ of Supreme said: law declaring applicable Court. That court com- Constitution, expressly “The commerce clause of the states Congress mits' several impliedly withholds from the *12 power regulate among Such commerce the the latter-. commerce another, com- but transportation not confined to one state to from- all prehends all intercourse between different states commercial goods in state component parts one the of that intercourse. Where does of sale the commerce transported purposes are into another for the sale transportation, end but embraces as well not with the they goods they reach their destination and while are the after original cited.) (Cases packages. goods principle, purchased
“On in one State the same where are -'transportation purchase for to another the commerce includes cited.) quite (Cases transportation. as much as it does the recognized many construing com “This has been decisions Knight Co., 156 U. merce clause.In United E. C. States v. buy, exchange 1, 13, sell, goods transported S. ‘contracts to. or to be among ‘part the several States’ were trade declared interstate Addyston States, Pipe or commerce.’ And in & Steel v.Co. United 211, 175 U. 241, prior the1court referred to the decisions as es S. tablishing that ‘interstate commerce consists intercourse traffic states, citizens or inhabitants different and includes only transportation persons . property . . but exchange purchase, also the sale and of commodities.’ In case has no any buying selling the court made distinction between or between buying transportation transporting to another State and for sale Quite contrary, import in another 'State. to the of the decisions transportation buying selling been if has was incidental to was- whether came it not material it first or last. corporation go
“A may another, State one into without obtain ing latter, legitimate leave or license of the for all purposes commerce; such of the statute latter State which obstructs lays privilege a burden on the exercise of this is void under the com Kentucky, v. 47, 57; merce clause. U. S. Western [Crutcher 141 Kansas, 1, Co. v. 216 Telegraph 27; U. S. Union International Text 112; Pigg, 91, 217 U. S. Sioux Remedy book v. Co. Cope, Co. v. 235 .]" U. S. 197 Referring then to the facts the court said: ‘‘ practice go been It had into Kentucky to grain transported purchase to be to and- used in mill its in Tennessee.. purchased occasions it had On different . defendant. . . was made continuance of that practice, This contract the plain- intending grain to its mill- tiff to forward as soon as delivery was Applying principles . to these facts the made. before stated interstate was in. commerce. transaction state court, we-think the stressing was Kentucky fact that the made in contract was performed delivery be was there, put aside the further facts to be on board the cars and in continuance that the prior practice, purchasing grain to its mill shipment was bearing Tennessee. neglected We think the facts so had a material and should They otherwise have been considered. showed what seemed an intrastate part commerce., transaction was a of interstate (Cases cited.)”
In Lemke v. a North Farmers’ Grain U. S. Dakota general Association in course of the and usual grain bought grain placed it carried in that state and other elevators from which loaded cars subject grain loading states for sale. Even after satisfactory price diverted was offered and sold within if a the State grain was but local practically sales were such unusual Milling Dahnke-Walker Citing marketed other case of states. Bondurant, Co. v. that the Supreme Court held supra, the Federal *13 including Dakota was business, buying grain, in North the regulating interstate commerce and that a statute of North Dakota buying selling grain was a burden applied as to the facts upon cases, foregoing In and the cases interstate commerce. the two transporta cited, therein purchase of commodities one state com in interstate tion to another a transaction state held to be immediately relating directly 'and and), merce and contracts thereto trade or “part a of interstate connected therewith declared be did,not Company, While commerce.” in the instant case long course of purchase a defendant’s cotton it did in continuance under the dealing money plaintiff advance between it agreed whereby plaintiff contract terms of trust and cotton the deed of to defendant quantity a of cotton ship not less than fixed place-o.f by busi Tennessee, sold it at its Memphis, handled and to be ex credit was T-he there, commission. upon ness a factor and as/ ship agreement to' his in consideration tended to customary man by Memphis, it, at be handled to defendant to a question the transaction can be no as think there ner. We the cotton and that trade, or commerce business whole was interstate evidencing providing for notes, contract, of trust deed a plaintiff must be considered extended or credit so advancements will remem It be trade commerce.” “interstate “part such of” any bought cotton- nor sold Gage Company, neither bered that State, exercise, in. this attempt exercise or did it this State nor sep disassociated any business any privilege or do function or purely be classed which could arate from its interstate any cot sell no time did- is true It intrastate business. company purchase Gage Company did the ton to &' nor shown facts plaintiff nevertheless under transactions the parties constituted and involved commercial intercourse of an interstate character. a That sale not the test of interstate com- merce is definitely stated in Butler Brothers Shoe v. United States Co. Rubber Co., 156 Fed. by Supreme reaffirmed the Federal Bros, Court in cases to which presently we shall In refer. the Butler case the United States Company, manufacturing corpora- Rubber a tion of the State of Jersey, New a Butler entered into contract with Bros. Company, a corporation doing of the State Colorado a whole- sale business in whereby that state Company, the Butler Bros. designated appointed agent goods company, of the rubber sell manufactured the rubber company, in upon of Colorado State the terms and a commission specified basis in the contracts. Such goods consigned were to' be company, rubber to the Butler Bros. Company, upon its Necessarily goods orders. so ordered would be to the Butler Bros. in Colorado from the factories of the rubber company, in pro- other states. The contract vided goods proceeds and the thereof should remain the property of company, the rubber Bros., until paid Butler rub- company, agreed ber price goods consigned so to it and that separate bank covering account transactions connection with consignment Bros., to and goods sale Butler such should maintained it. The contract was made in and was a Colorado contract. In company suit alleged rubber for a balance be due and for an accounting under the contract the Butler' Bros. Company contended that illegal the contract was void and on the ground complainant company, rubber foreign was a cor- poration and making that in performing such contract it had en- gaged in and carried on business in the State of Colorado without license and in violation of the statutes State. of that It was held that question factorage.” contract in was a “contract of The court *14 lays then down proposition, the supported lengthy of citation (see 15) page authorities “Every corporation, that: empowered to engage in commerce, . may carry interstate . . on interstate every commerce in Union, every state in prohibition the free of and imposed by condition opinion propounds latter.” The then query whether the contract “in suit” awas transaction of interstate (of commerce. It is place observed “the of their execution contract) is . . right immaterial . because of the rubber company was as perform absolute to make and to in- of contract Jersey.” terstate commerce Colorado as in New It is then said: “Nor is the fact” that the -contract “did not evidence sales of the goods question. determinative of this A sale is in- not the test of of-commerce, terstate commerce. All sales of sound articles which transportation goods necessitate the one of' sold from state -to another, commerce; are interstate but commerce is interstate not sales of Importation goods. one from is state another in- into
.1161 commerce; every test, of element, the interstate dispensable trade, dealing contract, citizens of different negotiation, between states, whether contemplates importation, which causes it such goods, persons, information, of interstate of is a transaction 1, 9 6 L. Ogden, commerce. v. Wheat. the case Gibbons ‘Since of v. Telegraph Ed. Co. said Chief Pensacola Justice 23,’ Waite Telegraph 708, Union S. 24 L. Ed. ‘it has never Co., 8, Western U. been of commerce doubted that is an element commercial intercourse ” regulating power Congress.’ which comes within the of opinion
The further the contract “constituted holds states;” of different caused commercial intercourse between citizens was “im- “chief . . purpose principal and . effect” portation . . State of Colo- of . articles commerce into the states;” “necessarily rado from other a transac- that it constituted ’’ commerce; tion contract was transac- and that interstate commerce, any prohibition “of or obstruction tion interstate legislation making “by . . thereof . or to the enforcement” power Colorado, beyond State or action of the State of . . . was and futile.” conclusion is that: “The transaction do, company agree not interstate commerce. The rubber did storing,; do, any receiving, actually did not of the business of agree goods selling company do, The shoe did Colorado. did; do, Citing support cases in numerous that business.” 741, 188 Fed. Tucker, proposition said in United States v. it is intervening act, contract, “Every initiatory negotiation, 743: state, with those dealing trade and between citizens importation causes” contemplates state “which another” “.in or information is a goods, persons state from another one state of Co. Textbook of interstate transaction commerce.” International quotes approval pronounce Pigg, 91, v. 217 U. S. cites and Co., Rubber made in Butler Co. v. United States ment Bros. Shoe great “In says: case supra, Supreme and the Federal Court 1, 189, speaking Chief Jus Ogden, v. 9 Wheat. this court Gibbons ‘ traffic; Commerce, undoubtedly, but it is some said, is tice Marshall ’ more; Circuit Court thing ... It is said intercourse Circuit, by Judge Sanborn Appeals Eighth speaking for the 1, Co., Fed. States Rubber Shoe Co. United Butler Brothers v. goods. Importation ‘all interstate commerce is sales test, element, indispensable state another is the into one negotiation, contract, trade and commerce; every interstate dealing contemplates of different states citizens goods, persons informa it be of importation, causes such whether ’ ’’ *15 laid This as tion, commerce. test is a of interstate transaction down Bros, by quoted, applied again reaffirmed Butler case the Brewster, & v. U. Supreme the Federal Court in Furst Thomas doing business S. plaintiffs, Thomas, copartners, 493. The Furst & Arkansas court of Freeport, state Illinois, brought in a that suit Arkansas, “to re- Warren, against Brewster, defendant resident contract, the to a goods pursuant cover for him sold and delivered to by” the guaranteed performance been alleged have to Furst firm of contract By other defendants. terms of the cars Brewster, board oh “agreed deliver to Thomas to sell and ware- branch nearest their Freeport, option at Illinois, or at their ... as products their house, prices at their current wholesale long ordered him so as the contract was in force and his account was in satisfactory agreed condition.” give Furst Thomas to Brewster goods free advice as to the selling best methods of consumers. agreed pay regular “Brewster Furst Thomas the prices, wholesale payments according weekly to be made to his cash sales contract, and collections. On termination of the returning Brewster was privilege to have the to Furst & Thomas goods.” his stock of pleaded, goods unsold The defendants that the plaintiffs delivered to Brewster were manufactured Company, corporation place Furst-MeNess an Illinois with its state; making business that that contract and deliveries goods thereunder, agents Furst & Thomas of the Furst- acted Company; McNess the Furst-McNess had failed to comply doing pertaining with the statute of busi- of Arkansas foreign corporation ness in that state and therefore the suit could expressly not be maintained the statute of Arkansas forbade if. contract, stated, “At trial the terms of the as above and the trans- it, & Thomas did appeared actions under were shown. It that Furst Illinois; they Freeport, place received at that orders business at goods Brewster; so ordered (cid:127)from the defendant and that Warren, Arkansas, branch warehouse shipped Brewster at from the goods Memphis, The thus of Furst & Thomas at Tennessee. in Illinois from the Furst- obtained Furst & Thomas had been Freeport, doing corporation Illinois McNess au- 'corporation had been admitted that Illinois. It was Evidence laws of Arkansas. business under the thorized to do showing & Thomas were that Furst purpose for the also introduced support the contention Company and to agents Furst-McNess of the and the defendant & Thomas Furst transactions between agent. principal and were those of contract suit Brewster under the question jury upon was submitted to “The evidence plain instruction, which the give the agency. The court refused to application, had no Arkansas statutes of requested, tiffs 1, section Article they contravene that, applied, if would reason giving to the United States 3, of the Constitution clause jury among The1 States. regulate commerce Congress power Arkansas Supreme Court of defendants.” found favor of *16 following (Furst its earlier decision v. in a similar Thomas case Hartzell, 172 1118) Ark. “that judgment. affirmed the It was held the question determinative relationship the between whether parties the agent.” was that of vendor principal and vendee or opinion by In an Hughes Supreme Chief Justice the Federal Court held determining that in in whether the transactions were interstate commerce it was immaterial Thomas were whether or not Furst & agents agent of the Furst-McNess or Brewster Furst an of & Thomas. clearly It is said: in “These transactions were interstate commerce, agents whether were or not Furst & Thomas Furst- the agent McNess and whether or not Brewster was in pursuance Furst Thomas. In Brewster orders sent Illinois, goods Arkansas Furst & Thomas in were to to Arkansas from branch in Tennessee. the of Furst Thomas warehouse goods ordering constituted shipment The interstate com merce, obligation right pay and the to and the to recover the amount due, sent, according goods which pursuant contract opinion- quotes in then arose the course of that The commerce.” approval pronouncement, Shoe supra, made Butler Bros. comprehends Co., v. adds: “Such commerce all the Co. Rubber states, component parts commercial between different intercourse ob and, according principle, any state statute which to established lays privilege on the exercise of structs or direct burden ’’ is void under commerce clause. engaging interstate commerce (Cases cited.) cases
Applying announced cited principles law approve and us we must facts the case before reviewed to the overruling plaintiff’s contention affirm the action of the court trial valid regard holding and deed of trust the notes in that and enforceable. question is accounting of this suit Coming side now to the authority under the court casually suggested in as to the the briefs accounting parties between to take an pleadings this ease point finding thereon, party makes neither make however examination parties is directed to an testimony of both 1, 1925, 1929, and July 22, from June account between them of date of is made as finding trial court judgment challenges find correctness of that appellant 1929'. Each July assessing, and allow in not trial erred claims the court ing. Plaintiff damages have claims sustained for, for losses hé ing him a credit his to sell of the defendant alleged failure account of year ordered storage during 1928 as and when had in defendant alleged claim refusing his allow same and also by him to sell On by it. weights of cotton sold his overcharge account loss erred in the trial court complains defendant other hand “charging back against overcharge $4309.12 defendant of com- ’’ mission. petition
We shall first plaintiff’s complaints. consider states transactions and defendant “business many have been and numerous” but that “has not *17 kept, keep complete nor been a of all able to record the business defendant, Gage transactions himself and W. A. and said Company.” keep testified, “any Plaintiff book or that he did not Gage Company; of his with the that when he account” transactions stub;” put drafts” he he “drew “would the amount on the that did ‘‘ money manner; they know how much he had drawn in that that not they supposed give for sold there were to me credit the cotton down ‘‘ ’’ belonged me; keep any books records any to he did not that that I cotton I the amount of drafts drew or the amount of of they got it;” bought gave I I what for and that “when bought was put check it on the stub bale and who the I I ginned lading it was and had bills for the cotton and where them; only I had.” were the records In situa- shipped to those Peck, employed W. J. accountant” make plaintiff “public to tion making audit, behalf, in his with defendant. 'an of the account In says supplied by plaintiff Mr. Peck he in- audit was the formation, such furnish; able plaintiff memoranda as was statements and to went and books Memphis he to checked defendant’s and found that condition;” & good Gage Company, be “did “the books to that “gave but me the refuse to furnish me with information” I every that The accountant stated item asked for.” information 1925, 22, with June on which there his audit commenced date' $4591.17 “and the audit a balance due included that period in- The from that date amount.” audit covered kept. cluding July 1, separate 1929. and distinct accounts were Two throughout account, open as the referred evidence One was as purchase plaintiff’s audit, account. The made as the the othefi July 22, June aforestated, during period from showed that Gage 1,- company 1929, plaintiff shipped to & had through acting stored, handled its offices as a factor had at and commission, in the we Memphis at and sold on manner Warehouses cotton; described, 3002 drafts on heretofore bales of have $258,700; Gage Com- Gage Company plaintiff & had drawn & commissions, etc., charged insurance, freight, paid the pany had 1, 1929, there was a balance against plaintiff July and that of same (referred open toi as ac- this account favor charged count) against which the or accountant $8438.97 auditor July 1, 1929, in the involved to date of interest on the two notes $1763.30, leaving a credit balance account amount transac- plaintiff’s purchase account covered $6675.63 favor. dealing. That account was in a different course of distinctly tions purchased 9, 1927, Septem- record of cotton between December request 1, 1928, by Gage ber Company, Memphis, at and at account, Memphis and .to his stored its warehouses at by plaintiff. resold and when ordered The usual customary expenses occurring handling in the off this charged plaintiff. handled The account shows 548 bales of cotton Company buying plain- this manner. For that cotton paid $56,886.14, by selling in amounts direction tiff’s by', gross $1023.15 but the! profit times ordered there him etc., expenses charged, storage, insurance, commission, aggregated Gage Company in $5,217.59, purchase which left a balance due $4,194.44. then the difference between account of The audit shows plaintiff’s balance favor. $2481.19 accounts to make a two notes, $18,000, upon principal credited sum of the reduced This 1, $15,518.81. July By due thereon reference amount as of finding trial will be judgment to the court it seen that audit, at, shown so arrived court found amounts only charge except correct’’ for commission “true and to the *18 excessive unreasonable and of that which the court found to be and later. damages refusing in his claim plaintiff’s to contention that
As Gage & alleges by he reason of the failure of he sustained cotton, storage, in directed to sell his in when then by so, finding against weight him= do the court’s was to in reading record evidence we think a of the evidence set out matter, leaving court’s bearing upon out of consideration the trial that witnesses, requires judge .credibility us opportunity to of the plaintiff’s finding trial court The testi- to of the thereon. sustain vague, in claim and uncorroborated mony support of this indefinite during by Gage Company & his letters written to is refuted own which, testimony his substance tenor refers. The the time to time, expression be that is that his cotton not sold at these letters requesting advance, his cot- would that prices a that cotton of belief buy cotton him to and hold company and that the ton held quantities his cotton which it had replace sold. 'small claim over- by plaintiff sustain his evidence Nor is the offered require weights as loss in such charge by defendant on account finding on that trial chancellor justify us to set aside plaintiff was weight The against of the evidence. being issue weights his on the complete a or accurate record of produce unable to original A complete defendant. record cotton shipped Gage by Company & weight bale of of each cotton accounting made during period plaintiff’s to which audit received at its ware- confined, time same was the court was weight time at the record of the company houses like in evidence the-defendant. These sold the cotton was wás offéred examined same who supplied plaintiff’s records were accountant The' evi- made. he checked same in audit which the course of the Cot- Memphis member of the Gage Company dence was & was a organization; Exchange rules of operated- ton under- the Gage duly approved tested Company scales ‘‘ weighed by licensed accuracy and all as received or sold storage in was held weighers.” plaintiff’s cotton and bonded Much of year be- than a year and some more in defendant’s warehouse for a tending to show that evidence he is no fore ordered it sold. There du¡e not exercise defendant did properly stored or that same; any evidence that handling nor is there protecting in care Both proper condition. scales were not'accurate or defendant’s to the effect that plaintiff’s and defendant’s evidence was storage weight. was that “after would lose Plaintiff’s evidence weight; sixty days compress it loses put cotton is bale pounds per will bale” and “after the loss be about six to six months being loss of kept year for a or above six months the further there ’’ average weight pounds. weight will two loss not be over weights the difference when receivéd plaintiff’s cotton as shown Gage Company pounds per 2.62 bale. was but and when sold covering report -plaintiff fully shipment itemized each sent report cotton, number of sale of cotton. The showed the bales of markings weight printed of each bale and thereon was a nota- your weights tion : “We call attention weight shown column. suggest you weights compare We and advise us of dis- crepancies.” Plaintiff on a few occasions wrote complaining weights reported. about the so At such times the com- pany requested telephone either letter or to come to Memphis, expense, weighed” at its “see the cotton but so, did however one plaintiff’s not do “on or two” such occasions *19 request, de- went, plaintiff’s to Memphis resided in at cousin who weighed expressed him- warehouse, saw “and fendant’s the cotton weights. deemWe being with self as the correctness satisfied” relating to unnecessary or review the evidence it to further set out weight of on that issue the weights that say think it suffices to found. the trial court clearly with the defendant the evidence is assignments. of 'defendant’s now a consideration We come Gage Company “to by & charged commission The court found “was entitled company unreasonable;’.’ that the be excessive “$1.00 and that for commission” charge plaintiff reasonable- sum 3550 bales As a total commission. bale” was reasonable per during period by defendant handled plaintiff’s cotton where open account through accounting (3002 covered by the court account) allowed the commission through-the purchase Gage charge shown commission The total $3550. was fixed at Company by plaintiff’s boobs and the was audit made accountants $7859.12. e., cent, rate, per commission i. two one-half charged against plaintiff Gage Company which it uni- was that formly regularly charged) on transactions of the customers plaintiff. bind years had with For than ten more of continuous dealing plaintiff charged uniformly been had the same rate of com- A mission. report written of each however small made sale was plaintiff. report This rate, showed and amount commission charged. were, time, Statements of the account from time to sent plaintiff period dealing showing over the of years which their marbed charged. object plaintiff commission ever At no time did charged. any rate is in petition Nor claim his plaintiff made charged the rate of commission was unreasonable- or excessive charged customary or not the usual rate such transactions Memphis. years plaintiff In all dealing between them ac- quiesced any complaint objection charged. without in the rate any specific agreement There seems been to have never about thé rate clearly of commission dealing but their on the basis of the usual customary charged Memphis. Gage rate libe transactions sixty-five years. , is The evidence had been continuously twenty years preceding this than next more fixed, charged plaintiff had been the trial' the rate of commission usual, customary regular charged in transactions commission a,g testimony as to such had all the plaintiff. those Further with was that transactions of had between bind defendant factorage per charged cutomary com- centage usual testimony marbet, Memphis mission at the nor was there shows part contrary. The evidence to the (1) owner ways. Where the Memphis two factors sell cotton in receipts and stores it therefor ships the cotton the' factor who same, pays insurance and warehouses, and cares for protects rebates, samples and ex- ‘freight freight selects thereon, collects the owner, holds cot- salesrooms, to the hibits submits offers same subject at the owners’ meantime, sale ton, financing same in con- all transactions beeps records and accounts orders in- oftimes, as in handling same. The cotton nection This was the method year and more. storage for a stance, held in 548 bales of While dealing and defendant. by plain- actually shipped accounting in the involved which is cotton, men- yet heretofore as to to defendant tiff plaintiff’s re- account, defendant at purchase covered tioned account, plaintiff’s in that amount Memphis quest bought cotton at and held into and stored money, same advancing toob purchase thé *20 cotton, and other insurance paying plaintiff’s as in its warehouses and held salesroom samples thereof thereon, exhibited expenses long subject same over a period'of to, only at, time and sold'same plaintiff’s appears order. It that the commission on so handled comes within charged by the same rate as on cotton owner testimony way direct- to the factor. The is one .usual, customary charge by -and uniform made cotton commission .including merchants or at Memphis, Gage factors for handling cotton in outlined, the manner plaintiff’s and as all above handled, (cid:127)cotton was cent, is two and per one-half the commission (2) charged plaintiff. by The other method which cotton factors Memphis sold cotton is referred to B. as the F. O. evidence method. The ship, owner does not the cotton to the factor. The cotton is held compress the owner at the local or warehouse and merely he sample sends the factor a which the commission merchant exhibits the salesroom. If an immediately offer is made factor by telephone communicates the offer telegraph to the owner. If or. the offer is satisfactory -accepts the owner and forwards the ware- house-receipts to the factor buyer in Memphis same to delivers who and the deal is thereby According consummated. evidence usual and customary $1 commission for such a bale. is sals It -true that some of the witnesses for that the usual testified factorage commission at Memphis bale, $3i per but in- each developed stance. it that the witness referred to sold .latter method. Apparently the trial chancellor overlooked the dis- tinction. The writer any -is testimony unable to find which accorded .the construction most favorable quality is of a and sub- stance sufficient plaintiff’s to sustain respect contention great .overcome weight showing evidence defendant .charged, plaintiff only ordinary -the usual and commission for the services rendered in handling factor his It does cotton. appear to be a weight matter of the evidence on this issue (cid:127)as parties, between the but a lack of rather substantial evidence record support of the trial reducing chancellor .action the rate of the situation, commission. In this since the correctness charges of the amount commission inis. challenged nowise if found, charged the rate proper, judgment should be corrected so as to allow defendant the amount due it as shown its books and by plaintiff’s records the audit accountant; made judg- so that be for defendant .ment thereby the balance notes, shown to be due on said 1, 1929, as of July in the amount of $15,518.81. assigns
Defendant error also the failure and refusal of the attorney’s court to allow it an provided trial fee as the terms involved. It will *21 grounds damages heretofore discussed. These claims for against ruled plaintiff by the have held that trial chancellor and we the reduction or was credit which trial did allow chancellor not, evidence, under the properly judgment proper made. on the The notes, as we directed, view the exact matter and as we have is day amount July, claimed 1929. The defendant as of the 1st of any only validity denied the also that the notes but amount was and owing due to if valid. defendant thereon same were By this suit was compelled issues, defendant meet these sustain to validity resisting plaintiff’s of the notes and enforce same right various recover claims for credits or offsets establish required employ necessarily thereon. To do so defendant attorneys “If note represent provide: it. Each of the notes collection, paid maturity attorney for is not an placed is with agree collecting I pay incurred the holder costs enforcing due including per on amount the same cent fee ten attorney’s at- necessity employment fee.” We think the validity of torneys action, defendant defend this maintain notes, credits to plaintiff’s resist claims as to offsets alleged obligation he enforce the he entitled and meaning of terms above contemplation thereon comes within the stage proceedings quoted. plead Plaintiff does not nor an due” is per “on amount does he advance the claim ten cent find attorney’s The writer does not or excessive fee. unreasonable acquiesces Seemingly he plaintiff’s this matter discussed in brief. if is recover proposition that defendant entitled to attorney’s per cent of the fee ten it would be entitled an said instrument notes before the execution complete keep able kept while the has not or been
Notes
claim notes “an prayer petition is that close of said deed trust.” once.temporarily restraining” the defendant trustee order be issued “under threatened” foreclosure sale proceeding “from trust until the here sale contained in said deed of matters power of adjudicated by the court and” that forth have been heard set enjoined hearing permanently, be “on final of this cause defendants selling of and that said property from said under said deed trust naught and for deed held, and,..if deed of said trust.be canceled ascertain, valid, prays the court to and de plaintiff of trust then damages plaintiff due from defendant termine amount according weights true plaintiff failure sell against be plaintiff that such amount offset instructions accounting plaintiff an had between and de notes and that be said amount, anything, plaintiff if what owes fendant to .ascertain mutual notes, that the amounts or indebted said demands determined plaintiff and defendant be ascertained and ness between plaintiff the defendant owes the same and that whatever sums shall notes, ascertaining against and if finds after offset said the court be against offsetting the mutual demands of and defendant each, plaintiff owes defendant amount on said notes other shall.adjudge permit pay the same and court such.amount upon payment of amount to such to: defendant defendant fully adjudge paid, and notes said deed of trust the court to. satisfy record, said order and direct defendant to satisfied selling, . and said deed trust defendants restrain ’’ temporary injunction A trust. issued. under said deed of property did Gage1 Company admits out a that “it take The answer not “in in the -State of Missouri” business avers license to do .that making question factor and in loan in as a cotton business doing it State Mis ease was this required” by the statutes of souri so that was this State “to take corporation Missouri” and “denies out a license as nonresident regard.” Continuing the law” of State “in that it violated the nature extent the business describes carried answer a cotton factor and manner in which defendant as same dealing conducted, alléged plain course sets forth years” tiff period over of “several notes and deed circumstances of the loan is evidenced
out of which notes it and in that connection
should notes hereby principal and all other sums secured the whole of the advances payable purposes for all shall at once become due and whether debt trust further sets suit on the or foreclosure.” deed out agreed “400 ship” bales of “has ship he cot- January and in the event fails said next per amount pay company specified or all same” to ton liquidated ship damages “as of bales he fails to on the number bale carry agreement” specified further his it is the failure out agreed further in addi- company should the make advances notes, specified amounts in the which additional to and above the tion company, plaintiff ship” “will optional with the are advances company twenty charged for each dollars” so “one bale of per pay shall “six cent interest specified It him. company.“may him per advance annum on amounts” as on the notes described.” Under as well open account same executed a “cotton contract” same time date and trust, agreed deed of he to “deliver or whereby, set out Gage- Co., Inc., W. A. to the said their to be delivered cause Memphis day on or before City the first warehouse sold” said January company 400 bales of cotton “as next
notes be remembered that took position and deed of absolutely that the notes trust first void and unenforceable and second that same were held to be valid if upon damages he entitled to credit offset or the notes for
notes further judgment should therefore be be due. The found to amount attorney’s favor defendant so assess fee amended as to July due, aforesaid, notes as on said per cent of the amount ten 1, 1929. cause remanded directions judgment and the is reversed conformity with this and enter same to amend trial court to the Hyde, GC., concur. Sturgis and opinion. C., foregoina' ouinion Ferguson, PER CURIAM: The judges concur, except opinion All the the court. as the adopted J., Hays, absent. Appel- Railroad L. Central v. Illinois Aaron Hardin (2d) 1075. W. lant. 70 S. April 19, One, 1934. Division