Brookford Mills, Inc. v. Baldwin

Ingraham, P. J.: The action was commenced to recover damages for a breach of a contract for the manufacture and sale of certain material called “ Sateens.” The case coming on for trial before a jury, it was agreed that a jury should be waived and that the case should be tried before the court without a jury. Subsequently the trial judge filed his decision in which he found that the plaintiff was a foreign stock corporation, organized and existing under the laws of the State of North Carolina, and was engaged in the operation of a cotton mill in that State; thatA.D. Juilliard & Co. were copartners, carrying on the business of commission mer [554] chants in the city of New York, and were the agents of the plaintiff in selling their goods in New York city and throughout the United States; that Juilliard & Co., under their arrangement with the plaintiff, made sales of the plaintiff’s manufactured products in their own name, attended to the delivery of the goods, collected the purchase price and guaranteed the accounts on such sales to the plaintiff and made advances to the plaintiff on the goods consigned to them; that, the defendants were copartners in business’ in the city of New York; that on or about the 2d of August, 1907, Juilliard & Co., in their own name, but in fact as the agents and factors of the plaintiff, and on its behalf, agreed to and with the defendants to manufacture, sell and deliver to the defendants 128,400 yards of . sateens and to ship the same F. O. B. at the plaintiff’s place of business in North Carolina, freight prepaid, to such eastern finishing works as the defendants should designate; that said shipments were to be made in installments during the months of November and December, 1907, January, February, March „ and April, 1908; that the defendants further agreed to pay to Juilliard & Co. the purchase price of said goods; that on the execution of this contract between Juilliard & Co. and the defendants, Juilliard & Co. sent memorandum of the contract to the plaintiff “subject to your confirmation;” that the plaintiff duly confirmed the sale and commenced the manufacture of the goods called for by' the order; that the plaintiff was ready, able and willing to deliver the manufactured product, as required by the contract; that the defendants failed and refused to furnish shipping directions' for the goods and requested Juilliard & Co. to defer the shipments, which they declined to do; whereupon, on the 25th day of November, 1907, the defendants canceled the order and refused to comply with the contract. The court further found the difference between ■the cost price of the goods and the contract price agreed to be paid, and awarded the plaintiff judgment for the balance, from which judgment the defendants appeal. These findings were amply sustained by the evidence, but the defendants rely upon several grounds to defeat the plaintiff’s claim. The first one that requires discussion is that the action cannot be maintained because the plaintiff has never procured from [555] the Secretary of State- a certificate authorizing it to do business in this State. A complete answer to this objection is, that the'plaintiff never did do business in this State within section 15 of the General Corporation Law (Gen. Laws, Chap. 35 [Laws of 1892, chap. 681], as amd. by Laws of 1901, chaps. 96, 538, and Laws of 1904, chap. 490, and re-enacted in Consol. Laws, chap. 23; Laws of 1909, chap. 28). The plaintiff’s mill is in North Carolina and it has no office for the transaction of business in this State. It consigned its manufactured product to a commission merchant doing business in the city of New York, with authority to sell the goods, receive the proceeds and remit. The commission merchant does business here and makes sales on behalf of the plaintiff; but certainly the plaintiff is not engaged in business in this State, because it sends its product here for sale through a commission merchant, who transacts the business, makes the sales and receives the consideration. It is Juilliard & Co., the commission merchants, who do the business that is done in this State, and not the corporation. As was said by the Court of Appeals in Penn Collieries Co. v. McKeever (183 N. Y. 98): “To be ‘doing business in this State’ implies corporate continuity of conduct in that respect; such as might be evidenced by the investment of capital here, with the maintenance of an office for the transaction of its business, arid those incidental circumstances, which attest the corporate intent to avail itself of the privilege to carry on a business.” (See, also, Eclipse Silk Manufacturing Co. v. Hiller, 145 App. Div. 568.) The contract in this case was made by Juilliard & Co. in its own name. In its relation to the defendant it did not assume to act as agent for the plaintiff. Juilliard & Co. was liable for a breach of the contract, as it had, by its contract, assumed that obligation; and under the arrangement between Juilliard & Co. and the plaintiff it is quite possible that unless the plaintiff had approved the contract and accepted it as having been made in its behalf, the plaintiff would not have been liable for a breach of the contract, and Juilliard & Co. recognized that condition by • transmitting the contract to the plaintiff as having been made in its behalf, subject to its confirmation. When plaintiff confirmed the contract, however, it then assumed the obligation [556] to perform, and on proof of these facts it would have heen liable to the defendant if it had committed a breach. It was entirely competent, therefore, for the plaintiff to prove that it had confirmed the sale as made by Juilhard & Co. as a sale on its behalf and that, clearly under our system .of practice, gives the plaintiff, as the real party in interest, a cause of action to sue for a breach of the contract, and to prove that fact it was competent to show that the contract had been transmitted by Juilliard & Co. to the plaintiff and had been confirmed and assumed by it. • ■ The other objections taken by the defendants to the plaintiff’s recovery have been examined, but we think the court below was right and no discussion is required. It follows that the judgment appealed from should be affirmed, with costs. McLaughlin, Laughlin, Miller . and Dowling, JJ., concurred. Judgment affirmed, with costs.