built for $250 after including the cost of design. I said if that is the case, I will furnish 10 times $250 or $2,500, up to that amount, as needed, and furnish the designing of them, my brother getting out the designs for the machine. * * * He was to give me a half interest in the patent and improvements, and also half of all the profits in the business, and he was to advance money equal with me after the $2,500 had been exhausted."

Oliver E. Barthel was a witness in the present case, and testified about the alleged agreement between the complainant and the defendant, supporting his brother in the main, and in answer to the question, "What arrangement was made as to the designing of these machines that were to be constructed," replied:

"Well, the designing was included; that is, on account of taking off the $500, my brother agreed to have me design the machines, instead of furnishing $3,000 as originally agreed upon or talked about."

He also testified that at that time Mr. Crippen had nothing, except he told witness what he wanted, and showed him a circular that he had of his old machine, which circular shows a cut of a vertical arm machine. Witness further stated that Crippen told him he wanted to make a horizontal roller machine with a central drive; that he did not exactly remember the details that they talked about. He further testified that during the time he was designing this machine Mr. Crippen gave him some drawings, and produced the drawings. He stated that he made some changes in this drawing, which appeared on the drawing itself.

It is obvious that the claimed contract of the complainant in this case with the defendant established such relations between the two that Oliver E. Barthel was in the employ of the two parties to the contract, and that the agreement to design and assist in the construction of the machine which the parties were to own in common should preclude both him and the complainant from claiming that such design was an original invention which would

render less valuable the invention of the defendant. In the brief of complainant it is stated:

"The new and improved machine of the horizontal type, which had been constructed, had been designed and devised by Oliver E. Barthel, and on the 12th of November, 1906, after the defendant Crippen had entirely repudiated his contract, Oliver E. Barthel made application for patent covering the improvements of which he claimed to be the inventor. An interference resulted from these two applications, involving only the question of priority as between Oliver E. Barthel and George W. Crippen as to the improvements, and is now being tried out in the patent office at Washington. This interference is entirely separate and distinct from the contract entered into between the complainant, Otto F. Barthel, and George F. Crippen."

We cannot accept this view. It is obvious from the testimony of Oliver E. Barthel in this case that the suggestion of a modification of the machine covered by defendant's letters patent to a horizontal machine came from Crippen himself, and that the relations of the parties were such that had the copartnership alleged been carried out, Oliver E. Barthel would not have been entitled to claim the invention as against his employers. The testimony of this interference would at least have a bearing upon the question of what the decree should be. It may, upon consideration by the trial court, be deemed to have a broader significance, and bear upon the question of the credibility of the witnesses in the case.

The application for leave to remand the case was reserved until the hearing. It has now had full consideration in connection with the record and briefs in the original case, and we conclude that the rights of the parties will be best served by an order remanding this record, with leave to the defendants to put in the further testimony asked for in their petition, and with leave to complainant to reply thereto. The costs, as upon a motion, will be awarded to the defendants.

BLAIR, C. J., and GRANT, OSTRANDER, and BROOKE, JJ., concurred.

HAUGHTON ELEVATOR & MACHINE CO. v. DETROIT

CANDY CO.

FOREIGN CORPORATIONS-NONPAYMENT OF FRANCHISE FEE-EFFECT

-CONTRACTS.

A contract by a foreign corporation for the sale and installation of an elevator and the making of repairs upon another elevator, construed as a whole, is a contract for the transaction of business within the State; and plaintiff not having paid the franchise fee required by Act No. 34, Pub. Acts 1903, is precluded from maintaining an action for a breach thereof.1

Error to Wayne; Rohnert, J. Submitted January 20, 1909. (Docket No. 158.) Decided March 16, 1909.

Case by the Haughton Elevator & Machine Company against the Detroit Candy Company, Limited, for breach of a contract for the installation and repair of certain elevators. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. firmed.

May & Dingeman, for appellant.

Merriam, Yerkes & Simons, for appellee.

Af

Plaintiff is a foreign corporation, with its plant and offices at Toledo, Ohio. Its business is the manufacture, construction, and installation of freight and passenger elevators. It maintains no office in this State. The defendant is a partnership association, limited, under the laws of Michigan, and doing business in Detroit.

On March 27, 1907, defendant accepted a proposition made to it by plaintiff on March 7th. The acceptance made a complete and binding contract. By it plaintiff

As to what constitutes "doing business" within the State, by a foreign corporation, see note to Cone Export & Com. Co. v. Poole (S. C.), 24 L. R. A. 295.

66

agreed to furnish and erect in defendant's building in Detroit, one belt-connected electric freight elevator in accordance with the following specifications." It is unnecessary to state the specifications any further than to say that defendant agreed to furnish in place all necessary supports, guide posts, and sheave beams, to do all cutting of floors, walls, and masonry, to provide clear and unobstructed room for the placing of elevator with belongings and attachments, and to allow plaintiff the unobstructed use of space while installing elevator. The contract also provided:

"For the old elevator, we are to furnish and erect parts as follows: Guide posts, weight guides, guide strips, overhead sheave beams. To cut platform to fit hatch 5 ft. 6 in. wide by 4 ft. 2 in. deep, with wire wainscoting 6 ft. high on three sides. Repair and install three automatic gates; using your motor, controller and reversing switch and erect elevator ready for your wires and cut out switch, all in good working order. You to prepare hatchways and do other work same as specified for new elevator in this contract."

The day following the making of this contract, defendant telegraphed plaintiff canceling it. This suit is brought to recover damages for breach of contract. The court directed a verdict for the defendant, for the reason that the plaintiff, a foreign corporation, was doing business in Michigan contrary to Act No. 34 of the Public Acts of 1903, which forbids any foreign corporation to do business in Michigan "unless it shall first have filed and recorded in the office of the secretary of State a certified copy of its charter or articles of incorporation." The defendant rested its case without producing any testimony.

It appears from the evidence on the part of the plaintiff that it has a capital stock of $25,000; that it does not manufacture the motor and the controller, or the ornamental parts, or the cables or the leather belts, but buys them. It does its assembling and shipping in and from Toledo, and sends its elevator to the place ordered. It would have

taken about two weeks to put in the elevator, and about a week to do the repair work. The men employed would have been a millwright and two helpers. Its manager further testified that plaintiff might hire labor in Detroit if it needed more than it could send from Toledo; that it had done so occasionally; and that it might be compelled to buy a few things in Detroit, such as nails, bolts, hinges, and lumber.

"We were to do the repair work here in Detroit on the Gardner elevator. We were not connected with that elevator company. We were perfectly willing to make the changes in that elevator, whatever changes were necessary, not whatever they required. We should make such changes as were necessary. We were to do that work in Detroit and with the labor here. Also to make use of any stuff that they might have, and take back or buy of them or credit them for it."

GRANT, J. (after stating the facts). In determining whether the contract sued upon described a business to be carried on within this State, and therefore within the prohibition of the statute, or whether it involved the business of interstate commerce, the contract must be construed as a whole. It is indivisible. Plaintiff agreed to install a new elevator, which, under its evidence, would require about two weeks to install after the elevator and the necessary appliances were shipped to Detroit. By the same contract it also agreed to repair another elevator, which would take about a week's time. One price was made for the entire work.

If this contract were merely for the installation of a new elevator, plaintiff could urge with much reason that it was an act of interstate commerce, and did not fall within the cases of Hastings Industrial Co. v. Moran, 143 Mich. 679, and Pittsburgh Construction Co. v. Railroad Co., 154 Fed. 929, 83 C. C. A. 501 (11 L. R. A. [N. S.] 1145), but within Milan Milling Co. v. Gorten, 93 Tenn. 590 (26 L. R. A. 135), and other similar

cases.

But repairs to buildings and machinery are in no