Greek-American Sponge Co. v. Richardson Drug Co.

SiebecKeb, J. The appellant urges exceptions to the court’s finding to the effect that the bales of goods were in the custody of plaintiff’s agent at the hotel in Milwaukee for the purpose only of giving defendant an opportunity to inspect them, to determine whether they were to be accepted or rejected by it under the contract of sale, and the further finding that the bale of goods, when delivered to defendant, was in the original package as transported from Chicago to Milwaukee. The findings are excepted to upon the ground that they are inferences of fact not justifiable from the evidence adduced. Plaintiff’s agent, Mr. Leser, is the only witness testifying on this subject. His evidence is that the'two bales of goods, consigned in his name, were shipped to Milwaukee by plaintiff for the purpose of affording defendant the opportunity of inspecting them under the terms of the agreement theretofore made between the parties; that he received the two bales, with other goods, at Milwaukee, and transferred them to a hotel for the purpose of having them inspected by their customers for acceptance or rejection; and that if accepted he would deliver them to the purchasers; if rejected, they would be returned to the plaintiff, at Chicago. It appears that defendant’s officers were unable to make the inspection, but directed plaintiff’s agent to select the bale of best value of the two sent [473] ■for tbeir inspection, deliver it at tbeir place of Business, and if it was satisfactory it would be retained; otherwise it would ■be returned. Tbe evidence on tbis point of tbe transaction is tbat tbe agent cut tbe cords fastening tbe bales, for tbe purpose of examining tbe contents, wbicb be did by taking out ■some sponges. He then put back all be bad so taken out, refastened tbe bales as they were before opening them, and then selected tbe bale in question for defendant and delivered it at tbeir place of business. This evidence clearly supports tbe finding of tbe trial court on tbis issue. It is to tbe effect tbat tbe sponges were shipped to Milwaukee in bales for tbe purpose of inspection by defendant, and tbat they were delivered and transferred to defendant in tbe original package ■as transported from Chicago to Milwaukee. We find no tenable grounds for tbe exceptions urged to these points. It is further argued, upon tbe facts as found by tbe court, tbat these goods at tbe time of tbeir delivery to defendant bad lost tbeir character as an article of interstate commerce by becoming mingled with and incorporated into the mass of property in tbis state. To sustain tbis contention it must appear tbat at some time after tbe goods arrived at Milwaxikee and before they were delivered to defendant they were so dealt with as to exclude tbe inference tbat plaintiff held them for tbe purpose of consummating tbe transaction under tbe terms of tbe sale, and tbat tbis was part of tbe process of importing them from Chicago. It is apparent tbat tbe arrangement made between tbe parties at tbe first interview between plaintiff’s agent and defendant’s officer amounts to an agreement for a purchase and sale of a bale of sponges, subject to tbe condition tbat defendant, after inspecting tbe goods offered under tbe agreement, might reject them if not satisfactory. Whatever was done with tbe goods at Milwaukee before tbeir actual delivery was necessary for tbe purpose of completing tbe transfer under tbe conditions of tbe agreement of sale, pursuant to which they were shipped. Tbe opening of tbe bales [474] so as to permit an inspection of their contents for the purposes declared can in no sense be construed a dealing with them as merchandise in the market, whereby they were taken out of the process of transportation and thus became a part of the mass of property in the state. These acts were proper-steps in the delivery of the property to the purchaser and therefore essential to the performance of the contract. The reasonable inference from these events is that the property was in no way diverted from the original purpose of the shipment, namely, to fulfil the agreement of the parties. The question presented is, Does the transaction come within the protection of the federal constitution regarding interstate-commerce ? The fact that this transaction is one wherein the parties are corporations organized within different states can in no way affect the question, since the same protection is extended to commerce conducted by corporations as that by individuals. As stated in Paul v. Virginia, 8 Wall. 168, at the time this power was conferred upon Congress a large part of the world’s commerce was carried on by well-known and noted corporations, and “this state of facts forbids the supposition that it was intended, in the grant of power to Congress, to exclude from its control the commerce of corporations. The language of the grant makes no reference to the instrumentalities by which commerce may be carried on. It is general, and includes alike commerce by individuals, partnerships, associations, and corporations.” The facts before us show a course of dealing wherein a foreign corporation, as a dealer, has undertaken to enforce payment for goods which were transported to this state, delivered, and accepted by a purchaser, under an agreement, .made in this state, providing that when the goods were delivered to the purchaser they might be rejected if not satisfactory. It is unquestioned in this case that respondent was engaged in interstate commerce while transporting the goods from Chicago, Illinois, to Milwaukee, Wisconsin; but it is urged that subsequent to475 tbeir arrival in Milwaukee and before tbeir delivery to defendant they ceased to be an article of interstate commerce coming under tbe commerce clause of tbe federal constitution, and therefore the provisions of sec. 1770b, Stats. 1898, applied to tbe transaction bad concerning them in Milwaukee, which resulted in a consummation of tbe sale, and that this renders tbe contract of sale nonenforcible by tbe plaintiff. Tbe extent of tbe power delegated to Congress to regulate commerce between tbe states, and to what extent transactions are deemed to be a step in such commerce, have been repeatedly considered by tbe federal supreme court. In Brown v. Maryland, 12 Wheat. 419, it was declared that tbe extent of this power “is coextensive with tbe subject on which it acts, and cannot be stopped at tbe external boundary of a state, but must enter its interior,” and that “sale is tbe object of importation, and is an essential ingredient of that intercourse of which tbe importation constitutes a part. It is as essential an ingredient, as indispensable to tbe existence of tbe entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce.” In tbe case of Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, tbe court reviews tbe decisions upon this subject, and reiterates its adhesion to tbe rules enunciated in Brown v. Maryland and many subsequent cases, and declares that “in tbe absence of Congressional legislation, therefore, tbe right to import a lawful article of commerce from one state to another continues until a sale in tbe original package in which tbe article was introduced into tbe state.” Among additional authorities on tbe subject are tbe following: Robbins v. Shelby Co. 120 U. S. 489, 7 Sup. Ct. 592; Bowman v. C. & N. W. R. Co. 125 U. S. 465, 8 Sup. Ct. 689, 1062; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681; Lyng v. Michigan, 135 U. S. 161, 10 Sup. Ct. 725; Stockard v. Morgan, 185 U. S. 27, 22 Sup. Ct. 576; Caldwell v. North Carolina, 187 U. S. 622, 23 Sup. Ct. 229; Norfolk & W. R. Co. v. Sims, [476] 191 U. S. 441, 24 Sup. Ct. 151; American Exp. Co. v. Iowa, 196 U. S. 133, 25 Sup. Ct. 182; Swift & Co. v. U. S. 196 U. S. 375, 25 Sup. Ct. 276. Within the rule of these adjudications it must be held that 'the contract of sale sought to be enforced by the respondent pertained to the sale of a lawful article of commerce in its original package while it was an article of interstate commerce. Under these circumstances the contract is exempted from the provisions of sec. 1770b, and plaintiff is not precluded from enforcing it, though, as a foreign corporation, it has failed to comply with the requirements of this law. The right of the state to prescribe the conditions upon which foreign corporations may carry on business within the state is. undisputed and stands approved by the courts. When, however, such regulation imposes conditions which restrict them in their right, as foreign corporations, to make contracts pertaining to commerce between the states, then such legislation is an invasion of their constitutional right, under the provision which confers upon Congress the power to regulate such commerce, and such legislation is invalid to that extent. Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739; Fritts v. Palmer, 132 U. S. 282, 10 Sup. Ct. 93; Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851. These considerations dispose of the questions involved, and lead to the conclusion that the trial court properly awarded judgment in respondent’s favor. By the Court. — Judgment affirmed.