{concurring). While I agree with the result reached in the majority opinion that Ansul is liable for the amount of tax demanded in the notice of additional assessment of tax, I disagree as to the basis for attaining such result.
It is my conclusion that the Department of Taxation is correct in its contention that the sales of Freon were not sales of Ansul at all, but were sales of Kinetic on orders taken by Ansul.
As the facts are undisputed, the question of whether or not Ansul itself made “sales” of Freon within the meaning of sec. 71.02 (3) (d) 3, Stats. 1943, is unquestionably one of law, and the decision of the board of tax appeals on this point is not entitled to any particular weight. Ryan v. Department of Taxation (1943), 242 Wis. 491, 501, 8 N. W. (2d) 393.
There are three written sales-agency agreements in evidence entered into between Ansul and Kinetic, the first expiring on September 30, 1942, the second on September 30, *1031943, and the third on September 30, 1944. They are all substantially identical. Each of such agreements is entitled “Sales Agency Agreement between Kinetic Chemicals, Inc., of Wilmington, Delaware (Manufacturer) and Ansul Chemical Company of Marinette, Wisconsin {Agent).” Each provides that :
“2. All deliveries of said product, pursuant to sales made by agent and accepted by manufacturer, shall be made by manufacturer direct to the customer, title passing directly from manufacturer to the customer.
“3. Agent’s selling authority hereunder shall be limited to the solicitation of orders for said product from the following:” (Here follows a list of types of business from which orders may be solicited.) . . .
“5. All orders received by manufacturer from agent shall be subject to manufacturer’s acceptance, and, after acceptance, to manufacturer’s ability to fill the order. . . . Agent agrees, when soliciting orders, to inform customers that all orders are subject to manufacturer’s acceptance and ability to deliver, as aforesaid.
“6. ... If any customer listed by agent as eligible for credit on open account shall become delinquent in paying for goods delivered, manufacturer may suspend such customer’s eligibility. . . . Agent shall, however, render every possible assistance to manufacturer in the collection of overdue customer accounts, and, in the event that any such account shall not have been collected within ninety (90) days from the due date thereof, manufacturer shall be entitled to retain commissions accruing to agent hereunder until the delinquent account shall have been satisfied. The delinquent account shall then be assigned to agent. . . .
“8. Agent shall sell said product only at such prices, on such terms and conditions, and by such methods as manufacturer may from time to time direct.
“9. The commission to which agent shall be entitled for agent’s services hereunder shall be six cents ($0.06) for each pound of said product which agent shall have sold and for which manufacturer shall have received payment in full, and agent agrees to accept said commission as full compensation for the performance of agent’s services hereunder. Commissions accruing to agent will be paid to agent on or before *104the 25th day of each month next succéeding the month in which the commissions shall have accrued, less, however, such amounts as manufacturer shall have been entitled to retain under the provisions of paragraph 6 hereof.
“10. Except as specifically authorized herein, agent agrees not to make nor attempt to make any sale, contract, agreement, or representation on behalf of manufacturer, nor to hold itself out as authorized so to do. Furthermore, agent agrees not to make any agreements or contracts, in agent’s name and on its own behalf, with manufacturer’s customers for the furnishing of ‘Freon-12’ to such customers.”
There would seem to be no question but what, if the sales of Freon on orders solicited by Ansul had been handled in accordance with the terms of these sales-agency agreements, the sales of Freon would have been the sales of Kinetic and not of Ansul, Ansul being merely the agent who made such sales in behalf of Kinetic and receiving a commission for its services.
The goods being sold at all times were the property of Kinetic and title never passed from Kinetic to Ansul, but instead passed directly from Kinetic to the purchaser. (See paragraph 2 of sales-agency agreement.) All orders obtained by Ansul were subject to Kinetic’s acceptance. (See paragraph 5 of sales-agency agreement.) Ansul, in its letter of June 2, 1945, to the department, which constituted its application for abatement of the additional assessment, quoted paragraph 5 of its sales-agency agreement with Kinetic verbatim, and stated that such clause clearly indicated that the consummation of the sale took place in Kinetic’s offices and therefore such consummation was outside of Wisconsin.
These written agreements further explicitly provided that Ansul should not make sales of Freon on its own behalf or in its own name. (See paragraph 10 of the sales-agency agreements.)
The fact that the provision contained in paragraph.6 of the sales-agency agreements, under which Ansul guaranteed *105collection of the purchasers’ accounts which were not paid within ninety days to the extent of commissions due it from Kinetic, is not an unusual or uncommon provision to place in a sales-agency agreement.
Counsel for Ansul seem to tacitly concede that if the sales-agency agreements had been strictly carried out according to their terms, the sales would have been the sales of Kinetic and not of Ansul, but urged that the actual course of dealings between the parties was such as to materially vary the provisions of these agency agreements sufficiently so as to make the sales those of Ansul. Let us therefore examine the facts which might tend to support such contention.
Such facts are as follows: (1) Ansul accepted orders from customers for Freon in its own name, and not as agent for Kinetic, but there is nothing in the record to disclose that Kinetic had knowledge of this. (2) Except as to those customers who paid Kinetic direct because of Kinetic having shipped the goods c.o.d. or sight draft with bill of lading attached (which latter customers paid directly to Kinetic), Ansul remitted to Kinetic on a thirty-day basis the full purchase price of the Freon which Kinetic had had shipped to customers upon orders obtained by Ansul, whether or not such customers had as of date of such remittance paid Ansul, Ansul thereby investing considerable funds of its own which it did not receive back until the customers remitted to it.
There are probably good business reasons why Ansul preferred to handle collections of customer accounts directly instead of having Kinetic do so, because Ansul was selling its customers other refrigerants which it manufactured itself, besides Freon, and it wished to avoid the confusion and disruption of good will which might result if an outside party, such as Kinetic, had handled the collections on sales of Freon.
*106The significant fact, however, is that in making such remittances, Ansul did not deduct its six per cent commission but remitted the full amount received from the customers, and specified in paragraph 9 of the sales-agency agreement whereby Kinetic remitted such commissions to Ansul at stated intervals was carried out. This is much more consistent with the relationship existing between Kinetic and Ansul being that of principal and agent than it is with being-that of seller and purchaser.
In the record there are documents which were admitted in evidence showing how a sale of Freon to Amarillo Hardware Company of Amarillo, Texas, was handled, such sale being illustrative of the method pursued in other cases. The purchase order came directly from the Amarillo Hardware Company to Ansul without Kinetic’s name appearing thereon, and Ansul acknowledged the same in its own name, and not as agent of Kinetic. Ansul then sent a memorandum to its eastern representative, and this representative issued a “shipping order” to Kinetic in the name of Ansul directing Kinetic to ship the Freon to Amarillo Hardware Company, “terms open.” Kinetic then issued an acknowledgment showing that Freon was to be shipped to Amarillo Hardware Company, Amarillo, Texas, and charged to
Amarillo Hardware Company
600 Grant St.
Amarillo, Texas
Address — Ansul Chemical Company, agent Trusteeship.
Kinetic’s invoice for this sale shows that the sale was made to
Amarillo Hardware Company
600 Grant St.
Amarillo, Texas
Address — Ansul Chemical Company, agent Trusteeship.
*107It does not seem to me that the variance in procedure between that specified in the sales-agency agreements, and the actual method which was followed by Ansul, established a relationship of seller and purchaser which would be necessary in order to find that the sales of Freon became Ansul’s sales rather than Kinetic’s. In the illustrative case of the sale to the Amarillo Hardware Company it would seem that Ansul was in reality acting as agent for an undisclosed principal.
In 2 Am. Jur., Agency, p. 321, sec. 410, it is stated:
“It is well recognized as a general rule that where a sale is made by an agent in his own name, without the disclosure of his principal, the latter may sue in his own name to collect the purchase price.”
In other words, the fact that Ansul concealed from its own customers from whom it received orders for Freon, that it rvas acting as agent for Kinetic in procuring such orders, would not have prevented Kinetic from suing and recovering the purchase price directly from the customer, prior to the customer having paid Ansul. This being so, the sale of the Freon to the customer is properly a sale between Kinetic and the customer and not a sale by Ansul. Ansul procured the order and transmitted it to Kinetic and no sale took place until Kinetic accepted such order. When shipment was made title passed directly from Kinetic to the customer and did not go through Ansul. The fact that Ansul financed the credit by remitting in advance of the customer paying Ansul is immaterial because Ansul voluntarily chose this method of handling the credit rather than letting Kinetic attempt to collect from the customer, Ansul being liable for the amount of the unpaid account to the extent of all commissions then or thereafter due from Kinetic in the event the customer did not pay within ninety days.
The department in its brief states:
*108“If the taxpayer’s transactions in Freon were not sales by the taxpayer, then the income from those transactions is not used in determining the apportionment ratio. If that income was income from personal services, it would be deductible from the total net income and not be subject to the apportionment formula at all, as it would be allocated to Wisconsin because as income from personal services it has a situs at the domicile of the recipient. If, however, the taxpayer’s income from the Freon transactions was neither income from sales by the taxpayer nor income from personal services, then it would be miscellaneous income and as such included in the income to which the apportionment ratio is applied. The result is that a greater tax than was assessed by the appellant is payable by the respondent taxpayer if its income from these transactions is not income from sales of Freon but from personal services or is miscellaneous income.”
I am inclined to the opinion that the income from commissions received from sales of Freon is miscellaneous income to Ansul and not properly income from “personal services.” However, I can find no support in the statutes for the contention of the department that it is entitled to have either the board of tax appeals, or the trial court, assess a greater tax than that set forth in the notice of assessment from which Ansul took its appeal. No authorities are cited by the department in support of its contention that a tax in excess of the amount stated in the notice can be determined by either the board of tax appeals, or the trial court, and I am of the opinion that the department cannot be .sustained in its contention in this respect in the absence of express statutory provisions so providing.
Martin and Broadfoot, JJ., took no part.