Cleveland Cooperage Co. v. Detroit Milling Co. , 235 Mich. 57 ( 1926 )

Plaintiff, a foreign corporation, commenced this action by attachment proceedings in the circuit court of Lenawee county against defendant, a domestic corporation, to recover from it the amount claimed due on a consignment of barrels, alleged in plaintiff's declaration to have been sold and delivered to defendant on May 25, 1923, the property being described as, "174 55-57 gallon white oak barrels, 6-hoop, paraffined, at $3.90 each." The case was heard by the court without a jury, resulting in a judgment in favor of plaintiff for the amount claimed, with interest. The court's concise findings of fact and conclusion of law thereon are as follows:

(Title of court and cause.) "The court finds that on May 25, 1923, the plaintiff shipped direct to the defendant one car of barrels. This car of barrels was ordered from the plaintiff by defendant through the Michigan Cooperage Company of Detroit. The plaintiff is a foreign corporation and not domesticated in Michigan, and it was under the same status at the time of this order. Defendant is a Michigan corporation. The defendant used the barrels, and the price of the same was $641.40. The interest on the same to March 4, 1925, the date of the trial, was $56.08, making a total of $697.48.

"The contention is made that plaintiff could not recover this claim in this suit because it was engaged in intrastate commerce without being licensed to do business in Michigan. I do not find this contention sustained by the evidence. SeeYork Manfg. Co. v. Colley, 247 U.S. 21 (38 Sup. Ct. 430).

"I think judgment may pass in favor of the plaintiff and against the defendant for the sum of $697.48, with costs to be taxed."

Defendant removed the case to this court by assignments of error, claiming, in brief, that the judgment was against the clear weight of evidence and the court, not including in its findings all essential facts, erred in sustaining the venue and holding plaintiff was engaged in interstate commerce.

The claim that the judgment is against the great weight of evidence was apparently abandoned. No motion was made for a new trial in the court below, the assignment is not argued in the brief of defendant's counsel and the question is therefore not before this court.

Defendant's two argued contentions are recapitulated as follows:

"1. That plaintiff is an admitted as well as a proven foreign corporation and not authorized to do business in Michigan and was engaged in domestic or intrastate business at the time of entering into the contract with defendant.

"2. That suit was begun by plaintiff, a foreign corporation, against defendant, a domestic corporation, in the wrong county. The suit should have been begun in Wayne county, the home of defendant."

We fail to find in the record that the claim of wrong venue was raised or even brought to the attention of the court during the trial. The first mention of it we discover is in defendant's exceptions to the court's findings. No amendments to the findings are shown to have been proposed, nor any ruling asked of or made by the trial court on that objection upon which error can be predicated. It was shown defendant had a plant at Adrian and was doing business in that county. This is a transitory action in assumpsit. Defendant entered a general appearance in the case and pleaded to the merits, thereby waiving any objection to jurisdiction as to parties.

Defendant's contention is based on the fact, disclosed by the evidence, that the order for this car load of barrels was first received from it by the Michigan Cooperage Company, a Michigan corporation, with its. plant and office in Detroit, through which, as its sales representative, plaintiff had sold quantities of its product in this State. While a foreign corporation not authorized to do business in this State cannot recover on purely domestic contracts made and executed by it in violation of our State law, it can recover for goods bought of it and delivered in this State in interstate commerce transactions. It is not shown or claimed that plaintiff maintained any office, warehouse or place of business, or kept any supply of its output on hand anywhere in this State. It sold its product in Michigan only on orders for goods to be shipped from Cleveland. The Michigan Cooperage Company's relations with it in obtaining such orders were purely that of a sales representative or broker. When it received this order from defendant it simply sent it to plaintiff at Cleveland, where plaintiff acted upon and accepted it, then invoiced, charged and shipped the car load of barrels direct to defendant, which received and kept the consignment. We find nothing in the relations between plaintiff and the Michigan Cooperage Company which detracts from this being clearly an interstate shipment under abundant authority, both Federal and State.

In the closely analogous case on that question of RathPacking Co. v. Cold Storage Co., 222 Mich. 315, Justice FELLOWS so recently and fully reviewed the subject with reference to sustaining citations that we find no occasion to discuss it here. See, also, the yet more recent case of Westerlin Campbell Co. v. Milling Co., 233 Mich. 384. Those cases are controlling in principle here.

The judgment is affirmed.

BIRD, C.J., and SHARPE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred.

Justice MOORE took no part in this decision.