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question here involved. The cases graph, or the insurance business, to cited by the learned counsel for the which counsel would apply the words state from other jurisdictions have “trade" and "commerce," come withno important bearing, and certainly in the terms of said statute. cannot be accepted as controlling. An interesting case, and doubtless As a rule the cases apply to particu- the leading case, where the court lar statutes, and the sense in which had under discussion the question the words "trade" and "commerce" as to whether the business of a launare used in those cases has no appli- dry came within the purview of an cation, and furnishes no aid in deter- anti-trust statute, is the case of State mining the instant case. For in- ex rel. Moose v. Frank, 114 Ark. 47, stance, it was said in Geise v. 52 L.R.A.(N.S.) 1149, 169 S. W.333, Pennsylvania F. Ins. Co. - Tex. Civ. Ann. Cas. 1916D, 983, cited by counApp. — 107 S. W. 555: "In its sel of defendant. The court, in conbroad and general sense ['trade'] cluding quite
cluding quite a lengthy opinion, covers and embraces all occupations said: “The business of laundering in business, with the possible excep- is a mere service done, whether pertion of the learned professions, and formed by hand or by machinery, those that pertain to the liberal arts and an agreement to regulate the and the pursuit of agriculture.” price
therefor is in its last In State ex rel. Coleman v. West- analysis merely an agreement to fix ern U. Teleg. Co. 75 Kan. 609, 90 the price of labor, or services, and Pac. 299: “Intercourse between pri- the legislature of this state has not vate parties by means of telegraphic made such an agreement unlawful." communications is simply commerce, Other cases cited by counsel along although they are carried over the same line, and which we deem routes which are post roads."
it unnecessary to review in this opinIn Beall v. Beck, Fed. Cas. No. ion, are Rohlf v. Kasemeier, 140 1,161, it was held that a keeping of a Iowa, 182, 23 L.R.A.(N.S.) 1284, 132 boarding house is of itself a trade. Am. St. Rep. 261, 118 N. W. 276, 17 And in one of the cases, Re Pink- Ann. Cas. 750; State ex rel. Star ney, 47 Kan. 89, 27 Pac. 179, it was Pub. Co. v. Associated Press, 159 remarked that "in the broader Mo. 410, 51 L.R.A. 151, 81 Am. St. sense (trade) is any occupation or Rep. 368, 60 S. W. 91; Muir v. Sambusiness carried on for subsistence uels, 110 Ky. 605, 62 S. W. 481. or profit."
In State v. Fontenot, 112 La. 628, Surely counsel would not for a mo
36 So. 630, it was said: “Unless an ment contend that any such broad
act can be brought within the meanand general definitions and use of ing of the words of the statute, it is the terms could be made to bring the
not a crime, though it comes within
the mischief sought to be remedied business of a laundry under the
by the statute, and is of equal atrocterms of the statute, in the absence
ity with the acts enumerated by the of any language to be found in the
statute." statute that would remotely indicate
“Courts may be authorized somethat it was the purpose of the law- times to restrain the generality of makers to do so. It might with the terms of a law so as to exclude equal propriety be said, in a general from its operation exceptional cases, way, as of the telegraph business, or but not to enlarge the terms of a of the boarding-house business, or limited law." State v. Leo, 108 La. of the insurance business, mentioned 496, 32 So. 447, 15 Am. Crim. Rep. in the cases cited, that in a certain 272. sense laundering clothes is a trade In State v. Gaster, 45 La. Ann. or a business; but it cannot be so 636, 12 So. 739, Mr. Justice Fenner, classed in the sense as used in the as the organ of the court, had this statute we are dealing with. Nor
"All crimes in Louisiana would the boarding house, the tele- are statutory, and there can be no
98 So. 748.) crime which is not defined and de- Our conclusion is that the laundry nounced by statute. The determina- business operated in the city of New tion and definition of acts which are Orleans, as disclosed by the evipunishable as crimes are purelydence, is not "trade
Monopolieslegislative functions, which cannot or commerce,” in laundry busibe delegated to or exercised by the the sense said words judiciary."
are used in $§ 2 and 4 of Act. 11 of And in a more recent case, State the extra session of 1915; and that v. Gardner, 151 La. 874, 92 So. 369, said laundry business was not inMr. Justice St. Paul, for the court, cluded within the prohibition of said quoted with approval from United two sections of said act. States v. Reese, 92 U. S. 220, 23 L. The judgment appealed from is ed. 563, as follows: "It would cer- therefore affirmed. tainly be dangerous if the legislature could set a net large enough to
Rehearing denied by whole Court, catch all possible offenders, and leave
January 7, 1924. it to the courts to step inside and O'Neill, Dawkins, and Land, JJ., say who could be rightfully detained dissent from refusal to grant reand who should be set at large.” hearing.
Laundry business as within statute relating to monopolies. The decision in the reported case court referred to authority to the ef(STATE v. MCCLELLAN, ante, 527), fect that the word "commodity" is that a laundry business is not with- ordinarily used in the commercial in the provisions of a statute relating sense of any movable and tangible to monopolies or trusts and applying thing which is produced or used as to persons who attempt to monopolize the subject of barter or sale, and held "trade or commerce," appears to be
that this term did not apply to the a novel one, in so far as the specific
laundry business. It was said: “It
is concluded by the state that an holding is concerned, although there are other cases, some of which are agreement to fix the price of laundercited in the opinion in that case, which ing is not an agreement to fix the throw more or less light on the ques
price of 'any article of manufacture, tion involved. The court took the mechanism, or merchandise;' but it
is contended that the facts here alview, which is supported by other cases cited in the annotation, that as
leged constitute an agreement to fix the business of a laundry is not to
the price of a commodity, convenience, lease or to sell, or to deal in goods,
or repair. And it is not contended by wares, and merchandise, or other the state that the business of laundercommodities, and has nothing to do ing is included in the term 'any artiwith the fixing of prices of commodi- cle or thing whatsoever. This last ties, its business is not "trade or contention could not be sustained, becommerce" within the prohibition of cause, if the business of laundering is the statute.
not a commodity, convenience, or reIt was held in State ex rel. Moose pair, then it would not be embraced v. Frank (1914) 114 Ark. 47, 52 L.R.A. in the words 'article or thing whatso(N.S.) 1149, 169 S. W. 333, Ann. Cas. ever.' . . A study of its terms 1916D, 983, that an agreement to fix makes the fact plain that the legislathe price of laundry work is not with- ture has not included within the inin the operation of a statute declaring hibition of this act agreements relatit to be a conspiracy to become a party ing to the price of labor. The questo an agreement to fix the price of any tion has several times been before the commodity, convenience, or repair, or courts of various states as to whether any article or thing whatsoever. The a laundry was a manufacturing estab
lishment or not, and, so far as we are within the meaning of the section advised, it has been uniformly held quoted. In the common understandthat it is not.
If the business ing the function of a laundry is to of laundering is not a commodity, make clothes clean rather than to then an agreement fixing prices for make clean clothes. But if it were the performance of that service is not true that in the classification of ocwithin the inhibition of the Anti-trust cupations this business should be asAct. No other word or term in that signed to the manufacturing class, act could include that business. The still the statute would have no appliact does use the word 'repair,' but it cation to the case before us. The law cannot be seriously contended that was intended to redress a well-known this word is sufficient to embrace the
evil. It was designed to prevent manbusiness of laundering. It may be ufacturers and dealers in articles of true that to some extent laundries do
commerce from combining for the purrepair clothes which they wash; but it pose of lessening competition, regulatdoes this as a mere incident to that ing production, and increasing profits. business; and by such service they It was intended to secure to the pubmerely repair the damage which lic the benefits of fair competition in they have done in performing their trade, and markets in which prices of service of making the clothes clean.
products would be fixed with reference The business of laundering is a mere to the natural demand and supply. It service done, whether performed by will be observed that all contracts in hand or by machinery, and an agree
restraint of trade are not forbidden, ment to regulate the price to be
but only such as are entered into by charged therefor is, in its last analy
parties who are 'engaged in manusis, merely an agreement to fix the
facturing, selling, or dealing in the price of labor, or services, and the
or any like manufactured or legislature of this state has not made natural products.'” such an agreement unlawful.”
The annotation does not purport to It was held in Downing v. Lewis cover cases where one sold a laundry (1898) 56 Neb. 386, 76 N. W. 900, that business and agreed not to re-enter a laundry was not a manufacturing upon this line of business, and the establishment within the meaning of question was as to the validity of the a statute making it unlawful for any agreement. See, for example, Godperson or corporation engaged in the frey v. Roessle (1895) 5 App. D. C. manufacture or sale of any article of 299; Barrone v. Moseley Bros. (1911) commerce to enter into any contract 144 Ky. 698, 139 S. W. 869; Augusta or combination with any other person, Steam Laundry Co. v. Debow (1904) etc., engaged in the manufacturing, 98 Me. 496, 57 Atl. 845; Southworth selling, or dealing in the same or any v. Davidson (1908) 106 Minn. 119, 19 like manufactured products, whereby L.R.A.(N.S.) 769, 118 N. W. 363, 16 a common price should be fixed for
Ann. Cas. 253; My Laundry Co. v. any such article or product, or where- Schmeling (1906) 129 Wis. 597, 109 N. by the manufacture or sale thereof W. 540. And see, as illustrative of should be limited, or the amount or possibly other cases of the kind, Alnumber of the products to be sold or len Mfg. Co. v. Murphy (1910) 22 Ont. manufactured should be determined, L. Rep. 539, where the question was or whereby the products or profits of
as to the validity and effect of an such manufacture or sale should be
agreement by an employee of a launmade a common fund. The court
dry company that he would not, for said: “It seems perfectly plain that a
three years after leaving the employlaundry, the business of which is to
ment, engage in business of a similar wash and iron linen and other articles kind. of wearing apparel and domestic use The question whether one engaged which have become soiled in the serv- in the laundry business is performing ice for which they were fabricated, acts in interstate trade or commerce, is not a manufacturing establishment where he solicits patronage in one
state and performs the services for his patrons in another, has arisen in several cases, as in Kansas City v. Seaman (1916) 99 Kan. 143, L.R.A. 1917B, 341, 160 Pac. 1139, and Smith v. Jackson (1899) 103 Tenn. 673, 47 L.R.A. 416, 54 S. W. 981. In the former case the conclusion was reached that one
was engaged in interstate commerce who solicited laundry work for a laundry company situated without the state; while in the Tennessee case, the court held that an agent of a laundry company in another state, who collected garments and sent them out of the state to be laundered and thereafter redelivered them to their owners, was not engaged in interstate commerce, so as to be protected against the privilege tax imposed on his occupation by statute. The court said that the term "commerce," found in the interstate clause of the Federal Constitution, could not be held to embrace a transaction such as presented in this case; that it implied, when used by business men, trade or traffic, as in the exchange of specific articles or commodities for other articles or commodities, or else of these for money or its representative; that in a case like that before it, nothing, in the true commercial sense, was sold or exchanged; and that there was simply a personal contract based on a valuable consideration having no element of a commercial transaction falling within the protection of this clause of the Constitution.
Several other cases may be referred to because of their value for purposes of illustration or of analogy, although the facts do not bring them within the scope of the annotation.
In Muir v. Samuels (1901) 110 Ky. 605, 62 S. W. 481, it was held that a laundry was not a "manufacturing establishment” within the meaning of a statute giving to employees a prior lien on the property of any mine, railroad, rolling mill, foundry, “or other manufacturing establishments," when the property passed into the hands of a receiver or assignee for the benefit of creditors.
And a laundry company was held in Com. v. Keystone Laundry Co. (1902)
203 Pa. 289, 52 Atl. 326, not to be a "manufacturing" concern within the meaning of a statute relating to taxation (the statutory provision not being set out). It was said: “The appellant was incorporated for the purpose of 'cleansing, bleaching, starching, and smoothing textile fabrics by the use of machinery and mechanical appliances, and the application of skilled manual operation.' Its principal business is, as properly stated by the court below, 'washing and ironing. In carrying on this business, it needs soap and dyes, and, even if it does manufacture these two articles for its own use, instead of buying them, such manufacture of them does not make the ‘washing and ironing' concern a 'manufacturing plant and business, as defined by statute, lexicon, or judicial utterance."
Attention is called also to Re White Star Laundry Co. (1902) 117 Fed. 570, in which it was held that the business of a laundry was not within the provision of the bankruptcy statute giving jurisdiction over corporations “engaged principally in manufacturing, trading, printing, publishing, or mercantile pursuit.” The court said that the terms "manufacture" and "manufacturing" have well-recognized interpretations which were clearly inapplicable to the business under consideration. And the court took the view that the terms “trading” and “mercantile," as construed by the weight of authority, could not be applied to the business in question.
The question as to what amounts to trade or commerce is one which, of course, has arisen in various other cases, to one or two of which attention is called, in view of the fact that the issue in the reported case (STATE v. MCCLELLAN, ante, 527) was as to the meaning of these terms.
Thus, in Campbell v. Motion Picture Mach. Operators' Union (1922) 151 Minn. 220, 27 A.L.R. 631, 186 N. W. 781, where the question was whether the business of conducting a motion picture theater was a trade within the meaning of the statute relating to agreements or combinations in straint of trade, the court said that
it seemed clear that the only logical this case that the organized business conclusion was that the word "trade" of giving exhibitions of baseball bewas used in its broadest sense, and tween clubs in different states was not included business of any kind in interstate commerce within the meanwhich a person engaged for profit. ing of the Federal Anti-trust Acts.
But the Federal Supreme Court has The decision affirms (1921) 269 Fed. taken the position that a baseball ex- 681, 50 App. D. C. 165, in which the hibition, although for money, would court, after referring to various definot be called “trade or commerce" in nitions of the terms “trade" and the commonly accepted use of those “commerce," said that through these words, observing that personal effort, definitions runs the idea that trade not related to production, is not a sub- and commerce require the transfer of ject of commerce. Federal Baseball something, whether it be persons, Club v. National League (1922) 259 commodities, or intelligence, from one U. S. 200, 66 L. ed. 898, 26 A.L.R. 357, place or person to another. 42 Sup. Ct. Rep. 465. It was held in
R. E. H.
HOISTING ENGINE SALES COMPANY, Appt.,
New York Court of Appeals - November 20, 1923.
(237 N. Y. 30, 142 N. E. 342.) Bailment - implied warranty of fitness. .
1. A warranty of fitness is implied in leasing machinery for performance of specified work for which it was designed.
[See note on this question beginning on page 540.] Evidence - to explain lease.
- of implied warranty. . 2. In a suit upon a written lease of 3. Any warranty of fitness of a maa machine for performance of a stated chine for a special purpose implied contract, evidence is admissible to from a leasing for that purpose may show the details of the work to be be proved by parol, although the lease performed and the lessor's knowledge is in writing and contains no warof it.
APPEAL by plaintiff from a judgment of the Appellate Division of the Supreme Court, Second Department, affirming a judgment of a Trial Term for Westchester County in favor of defendant on his counterclaim in an action brought to recover rental alleged to be due for certain machinery leased by plaintiff to defendant under written agreements of lease. Affirmed.
The facts are stated in the opinion of the court.
Messrs. Kenneth E. Stockton and Thomas v. Scutt, 127 N. Y. 133, 27 N. Edward R. Whittingham, with Messrs. E. 961; Cody v. Dickinson, 159 App. Stockton & Stockton, for appellant. Div. 234, 144 N. Y. Supp. 159; Samp
The court below erred in admitting son v. Frank F. Pels Co. 199 App. Div. evidence of oral negotiations prior to 854, 192 N. Y. Supp. 538; Hoe v. Santhe execution of the written contract born, 21 N. Y. 552, 78 Am. Dec. 163; to prove an “implied warranty" of fit- Kellogg Bridge Co. v. Hamilton, 110 ness for a particular purpose.
U. S. 108, 28 L. ed. 86, 3 Sup. Ct. Rep. Eighmie v. Taylor, 98 N. Y. 288; 537; Smith v. Coe, 170 N. Y. 162, 63