J. R. Watkins Medical Co. v. Holloway

OPINION. FARRINGrTON, J. To sustain the action of the trial court in directing a verdict for the defendants at the close of plaintiff’s case, the defendants set up the following grounds, claiming that the transactions whereby the defendant Holloway acquired the goods were in violation of certain sections of the act concerning pools, trusts, conspiracies and discriminations found in chapter 98 of the Revised Statutes of Missouri of 1909: (1) That the agreement is in restraint of — 148 — trade and competition in the purchase and sale of merchandise and void under section 10298, R. S. 1909'. (2) That it violates section 10300, R. S. 1909, in that it restricts sales to certain territory in Howell county, Missouri. (3) That it regulates and |ixes wholesale and retail prices contrary to section 10290, R. S. 1900. (4) That it lessens competition in that there was a division of territory contrary to section 10301, R. S. 1909. That therefore, such being the case, the plaintiff is denied a recovery as provided in section 10307, R. S. 1909, and that should such agreement be construed as a contract of agency between the parties, then the plaintiff cannot maintain this suit as it has never taken out a license to do business in Missouri as a foreign corporation as provided in sections 3039 and 3040, R. S. 1909. In'determining whether the plaintiff is denied the right to maintain this suit, either under section 10307 or section 3040, we must first ascertain whether the course of dealing shown here between plaintiff and defendant was interstate business. If their dealing was “interstate commerce,” neither the Missouri antitrust statutes nor the statute requiring certain corporations to obtain a license apply. It is held in the case of Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 28 L. Ed. 1137, as follows: “So it is clear that the statute cannot be construed to impose upon a foreign corporation limitations of its right to make contracts in the State for carrying on commerce between the States, for that would make the Act an invasion of the exclusive right of Congress to regulate commerce among the several States. [Paul v. Virginia, supra.] The prohibition against doing business cannot, therefore, be literally interpreted.” We find the following language in Robbins v. Taxing District of Shelby County, 120 U. S. 489, 30 L. Ed. 694, 696: “In a word, it may be said that in the matter of interstate commerce the United States are but — 149 — uñe country, and are and must be subject to one system of regulations, and not to a multitude of systems. Tbe doctrine of tbe freedom of tbat commerce, except as regulated by Congress, is so firmly established that it is unnecessary to enlarge further upon the subject.’-’ In the case of Philadelphia & Southern Mail Steamship Co. v. Commonwealth of Pennsylvania, 122 U. S. 326, 30 L. Ed. 1200, it is held that “where' a subject of interstate commerce is national in character, or admits of only one uniform system of regulation, the power of Congress is exclusive; and that its failure to make express regulations indicates its will that the subject shall be free.” [See, also, Crutcher v. Commonwealth of Kentucky, 141 U. S. 47, 55 L. Ed. 649; Lyng v. People of the State of Michigan, 135 U. S. 161, 34 L. Ed. 150; The Norfolk & Western R. Co. v. Commonwealth of Pennsylvania, 136 U. S. 114, 34, L. Ed. 394; Caldwell v. State of North Carolina, 187 U. S. 622, 47 L. Ed. 336; International Text-Book Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 27 L. R. A. (N. S.) 493; State ex rel. Pacific Mut. L. Ins. Co. v. Grimm, 239 Mo. l. c. 182, 143 S. W. 483; International TextBook Co. v. Gillespie, 229 Mo. 397, 129 S. W. 922; Corn Products Mfg. Co. v. Western Candy & Bakers Supply Co., 156 Mo. App. l. c. 116, 135 S. W. 985; Koenig v. Boat Mfg. Co., 155 Mo. App. 685, 135 S. W. 514; Chuse Engine & Mfg. Co. v. Vromania Apartment Co., 154 Mo. App. 139, 133 S. W. 624; Security State Bank v. Simmons, 251 Mo. 2, 157 S. W. 585; Kirkeby & Gundestraup Seed Co. v. White, 168 Mo. App. 626, 153 S. W. 279.] In the case of Albertype Co. v. Gust Feist Co., 114 Tex. 791, the Supreme Court of Texas held that where a contract is one relating to interstate commerce, and therefore, under the Constitution of the United States (Art. 1, Sec. 8) giving Congress the power to regulate interstate commerce, the contract was not subject to the Texas anti-trust statutes defin — 150 — ing and prohibiting conspiracies in restraint of trade, for the reason that the purpose of such laws does not reach subjects beyond the power of the State to regulate. The same doctrine will be found announced in Eclipse Paint & Mfg. Co. v. New Process Roofing & Supply Co. (Tex. App.), 120 S. W. 532; Erwin v. Powder Co. (Tex. App.), 156 S. W. 1097; McCall Co. v. Stiff Dry Goods Co. (Tex. App.), 142 S. W. 659; Dr. Koch Vegetable Tea Co. v. Malone (Tex. App.), 163 S. W. 662.] The opinion in the case last cited discusses the question here under consideration on a contract which is almost identical with the one before us. The contract in our case is made by a citizen of Minnesota with a citizen of Missouri. By the terms of the contract, the merchandise was sold to the defendant Holloway in the State of Minnesota and was to-be and in fact was delivered f. o. b., “Winona, Minn. The various mail orders for goods sent in by the defendant from Missouri to the plaintiff in Minnesota were to be accepted and the delivery made in Minnesota. Nothing remained to be done under this contract after the goods were placed on cars in Winona except to- pay for them, and this was to be sent in to Winona, Minn. Payment was to be in money in case' the goods were sold by the defendant Holloway, or by allowing his account credit for the value of any that were returned. The evidence tends to show that all the goods were in fact sold by the defendant and none ever returned to the plaintiff. No- office of any kind was ever maintained in Missouri by the plaintiff, nor did it retain any lien on or attempt to reserve any title to the goods from the moment they went aboard cars-in Winona; they became the property of the defendant as soon as delivered to the carrier. Defendant paid the freight, and so far as the evidence goes, exercised complete control and ownership over the merchandise as soon as delivered by the plaintiff. — 151 — In the case of Dr. Koch Vegetable Tea Co. v. Malone (Tex. App.), 163 S. W. 662, the facts were almost identical with those here, and it was held that' such transactions constituted interstate business and therefore were not to be controlled by the local State laws.' The facts of the case bring the transactions between the plaintiff'and defendant clearly within the defined meaning of the term “interstate commerce.” The opinion in the case of Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1, goes into-this question extensively and discusses many of the decisions. Indeed, the law on this subject has been so-well discussed in the following cases that we deem it of no advantage to burden this opinion by a journey over the same trail, but instead refer to them as supporting-the view we take: Chicago Crayon Co. v. Rogers (Okla.), 119 Pac. 630; Freeman-Sipes Co. v. Corticelli Silk Co. (Okla.), 124 Pac. 972; Western Union Tel. Co. v. State of Kansas, 216 U. S. 1, 54 L. Ed. 355; McCall Co. v. Stiff Dry Goods Co. (Tex. App.), 142 S. W. 659; Vulcan Steam Shovel Co. v. Flanders, 205 Fed. 102; Security State Bank v. Simmons, 251 Mo. 2, 157 S. W. 585; International Text-Book Co. v. Gillespie, 229 Mo. 397, 129 S. W. 922; Corn Products Mfg. Co. v. Western Candy & Bakers Supply Co., 156 Mo. App. 139, 135 S. W. 985; Koenig v. Boat Mfg. Co., 155 Mo. App. 685, 135 S. W. 514; Chuse Engine & Mfg. Co. v. Vromania Apartment Co., 154 Mo. App. 139, 133 S. W. 624; Kirkeby & Gundestrup Seed Co. v. White, 168 Mo. App. 626, 153 S. W. 279; International Text- Book Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 27 L. R. A. (N. S.) 493. The eases defendants rely on are plainly distinguishable from those cited above and the one at bar. In Pope-Turnbo v. Bedford, 147 Mo. App. 692, 127 S. W. 426, the facts show an intrastate transaction between citizens of Missouri and therefore subject to the local State laws. In Amalgamated Zinc and Lead Co. — 152 — v. Bay State Zinc Min. Co., 221 Mo. 7, 120 S. W. 31, a foreign corporation operated a mine under a lease, and the contract was to he wholly performed in the State of Missouri, and hence was intrastate business. The case of State ex inf. Hadley v. Standard Oil Company, 218 Mo. 1, 116 S. W. 902, was a proceeding to revoke the license of foreign corporations that had violated our laws and they were confessedly doing business in Missouri with offices maintained here. The case of State ex inf. Crow v. Insurance Co., 152 Mo. 1, 52 S. W. 595, does not involve the question of interstate commerce. In Parke, Davis & Co. v. Mullett, 245 Mo. 168, 149 S. W. 461, it was admitted that a part of the business was transacted in Missouri by an office of the company maintained in Kansas City in this State and that that part of the business was intrastate. In United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, 109 S. W. 567, the opinion shows that the contract was to be fully performed in Missouri and that the corporation there maintained an agent who had charge of its office in this State from which the business was done. The opinion clearly shows that the business transacted was intrastate concerning the contract there under consideration. The defense in the case of Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U. S. 227, 53 L. Ed. 486, was based on the Federal anti-trust statutes and does not deal with State laws. Lastly, defendants rely on the case of Orr’s Admr. v. Orr (Ky. App.), 163 S. W. 757, where the plaintiff in our case was the claimant for a sum of money in a claim filed against the estate of one who had made a contract with it in some respects similar to the one we have under consideration. The facts of that case, however, as gathered from the opinion, clearly show that the claimant, The J. R. Watkins Medical Company, appointed an agent in Tennessee to sell its goods, and that while this agent guaranteed payment, for all he sold, still the claimant kept a branch — 153 — office in Memphis, Term., and all the orders of its traveling salesmen were sent to Memphis and were accepted and filled in Memphis. While the opinion shows that the claimant said the goods were shipped f. o. b.. Winona, Minn., yet the opinion further shows that they were shipped to the claimant’s branch office which it maintained in Memphis, and that the distribution torts agent took place in the State of Tennessee. The evidence shows, according to that opinion, that the-party receiving the goods was by the terms of the contract and by a letter appointed and called its traveling salesman and referred to- the agency, and in this connection, with the further evidénce that it maintained a branch office in Tennessee from which it distributed to its agent its merchandise, clearly distinguishes the-character of the transaction in that case from the one-under consideration. The contract in our case is not one that is unenforcible by reason of the defenses set up in defendants’ answer under the facts hereinbefore referred to.. For the reasons herein appearing the judgment is reversed and the cause remanded. Robertson, P. J.,. and Sturgis, J., concur.