Spaulding v. McNary

On Petition for Rehearing.

Mr. Justice Moore

delivered the opinion of the court.

In a petition for a rehearing it is maintained by defendants’ counsel that they are at a loss to understand where this court ascertained the facts, as outlined in the opinion, with respect to the vehicles being outside Oregon when orders therefor were taken. Paragraph 7 of the complaint, as far as material herein, reads as follows :

“That plaintiffs are now, and for several years past have been, engaged in carrying on their said business solely in the following manner: One of their agents, called a canvasser or salesman, solicits in his territory for customers; when he finds a purchaser, he takes a written order for a certain style of vehicle to be delivered to said customer in 30 days, or as soon as transportation will permit; thereafter a separate agent, called a deliveryman, delivers the vehicle to the purchaser in pursuance of said order, and the sale is then completed.”

A part of paragraph 1 of the complaint reads:

“That C. A. Hanson, of Grinnell, Iowa, is employed as one of their (the plaintiff’s) agents and as superintendent of agents, and is engaged in the delivering of said vehicles manufactured by plaintiff in Iowa and shipped into the State of Oregon, to be delivered to customers in the various counties of the State of Oregon.”

In the brief of plaintiffs’ counsel it is said:

“The facts as to the conduct of plaintiffs’ business are alleged in the complaint and admitted by the demurrer. These show that the course of business was carried on by plaintiffs by their agents soliciting orders for future delivery, the orders being thereafter sent to the superintendent who investigated the financial condition of the signer; and if satisfied that the sale would be a good *501business risk, provided it were made on credit, he would order the vehicle and later direct a separate deliveryman to deliver the vehicle to the purchaser at his home.”

6. It is believed that the excerpt last quoted is fairly deducible from the averments of the complaint, as hereinbefore set forth, from which it is reasonably to be implied that, when an order for a vehicle was secured in Oregon, the written application was immediately forwarded to Grinnell, Iowa, to Superintendent Hanson, and, if he found the customer financially responsible, he ordered a vehicle of the class desired to be shipped to one of plaintiff’s agents in this State, with directions to deliver the carriage to the purchaser.

In defendant’s brief it is stated:

“Counsel do not show in their complaint but what the goods are shipped to the State of Oregon, the original packages there broken, and the goods disseminated among the goods of this State, and thereafter sold and peddled in the manner described in paragraph 7 of plaintiffs’ complaint. * * They want us to infer, from the fact that their head office is in a foreign state, that the goods are outside of the State of Oregon when the orders are taken, but this is not their allegation, and, what is more, is not a fact. * * In order for counsel to show that their business is interstate business, their complaint must allege that the goods are without the jurisdiction of the State of Oregon when the order is taken.”

Since it fairly appears from the averments of the complaint that the vehicles when ordered were in Iowa, the plaintiff’s primary pleading was sufficient in that respect. It was not incumbent upon their counsel to anticipate a defense, and thereby set forth matters which properly belonged to the adverse party to allege. Bliss, Code PI. (3 ed.), § 200.

7. Defendants’ counsel had an opportunity first to move to strike from the complaint the great amount of *502wholly immaterial matter, and, after a ruling on the motion, to file an answer averring that the vehicles agreed to be sold by plaintiffs’ agents had been shipped into Oregon before orders therefor had been solicited, that the original packages had been broken, and the goods thus contained had become commingled with other property in the State; but, since they did not avail themselves of this filing occasion, the petition for a rehearing should be denied, and it is so ordered.

Reversed : Decree Rendered : Rehearing Denied.