Phœnix Nursery Co. v. Trostel

Vinje, J. In Wolf Co. v. Kutch, 147 Wis. 209, 132 N. W. 981, plaintiff, a foreign corporation that had not complied with sec. 1770b, Stats., sold certain flouring-mill machinery to a corporation of this state under an agreement to furnish a millwright to assist the purchaser in putting the machinery in place, and it was held that such agreement was a mere incident to the contract which did not deprive it of its interstate commerce character, citing F. A. Patrick & Co. [217] v. Deschamp, 145 Wis. 224, 129 N. W. 1096. The case of S. F. Bowser & Co. v. Schwartz, 152 Wis. 408, 140 N. W. 51, included the same question, since the contract showed that the foreign unlicensed corporation sold and installed a dry-cleaning outfit, but the court did not specifically pass upon the validity of the installation feature of the contract. That question came up later in the case of S. F. Bowser & Co. v. Savidusky, 154 Wis. 76, 142 N. W. 182, where it was held that the assembling and installation of the plant were mere incidents to the sale and that the transaction did not thereby lose its interstate commerce character, citing Milan M. & M. Co. v. Gorton, 93 Tenn. 590, 27 S. W. 971, and Wolff D. Co. v. Bigler, 192 Pa. St. 466, 43 Atl. 1092. Both cited cases relate to'the installation of machinery. Since the decision of the Wisconsin cases above referred to the supreme court of the United States in Browning v. Waycross, 233 U. S. 16, 34 Sup. Ct. 578, has held that where a foreign nonlicensed corporation contracted to sell and install lightning rods to he shipped into the state, the “affixing of lightning rods to houses was carrying on of a business of strictly local character, peculiarly within the exclusive control of state authority,” and that “such business was wholly separate from interstate commerce, involved no question of the delivery of property shipped in interstate commerce or of the right to complete an interstate commerce transaction, hut concerned merely the doing of a local act after interstate commerce had completely terminated.” Whether the previously mentioned cases in our court might he held to come within the exception suggested by Ohief Justice White in the opinion as being cases “where, because of some intrinsic and peculiar quality or inherent complexity of the article, the making of such agreement was essential to the accomplishment of the interstate transaction,” it is idle to speculate upon or discuss. And since what [218] constitutes interstate commerce is ultimately a federal question, it is equally idle for a state court to discuss tbe merits of or restate a clear rule upon tbe subject declared by tbe federal court of last resort. Suffice it to say that the reasoning in the Browning Case commends itself to our judgment. But even if it did not, that case governs the one before us. For, if the installation of lightning rods was not essential to their sale and delivery, much more may it be held that the planting of shrubs and trees is not essential thereto. It is .common knowledge that the great bulk of nursery stocks sold and shipped in this country is planted by the purchaser, not by the seller. In any event, the planting of a shrub or tree is not an act involving such peculiar skill or complexity as to require the services of the grower to do it. For a valuable note upon this precise subject where the late cases are reviewed see L. R. A. 1917C, 1012; also 14 L. R. A. n. s. 674, and 4 L. R. A. Cases as Authorities, 14. We fully concur in the view called to our attention by counsel for plaintiff that courts should not without good cause permit parties to reap the benefits of their contracts and then be relieved from their burden. Where, however, a constitutional legislative declaration is explicit in declaring a prohibited contract void and the case is clearly within the prohibition, courts have but one course to pursue, and that is to enforce the statute. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing the complaint upon the merits.