Question from Baltimore, Md.—I am acting here as a buying and selling agent for a lumber company outside of the State, they supplying me with the money with which to buy the lumber to ship to them on their orders, and I crediting them with the proceeds of the sales of lumber shipped to me to sell for their account, my compensation being a commission on the sales and purchases. Under these conditions I do not pay a license here in Baltimore, but as I expect shortly to move the office to New York, I will thank you to let me know if I would require a license to conduct this business in that city, and if so, where should I apply for same?
Reply: No license is required in New York City in order to carry on such a business as our correspondent describes. One who simply buys and sells here, as agent, need not make a report or pay a fee to any public officer. But if at any time he carries on a general mercantile business, as agent, he must register and pay a fee. The statute is as follows: “Any person now carrying on or conducting a general mercantile or manufacturing business within this State, or hereafter commencing such business at or in a fixed location as agent or manager for another or others, shall—at the commencement of such business, file a sworn statement, verified by such agent and principal or principals, in the county clerk’s office of the county within which said business is carried on, stating the nature of the business and the full name and residence of such principal or principals.” The fee is $1.00, and failure to file the statement is a misdemeanor.
Opinion No. 3.
RETAINING LUMBER SHIPPED CONSTITUTES ACCEPTANCE.
The acceptance of lumber, where the grade is disputed, is the subject of the following correspondence:
Question.—We recently shipped a car of lumber to a dealer, who claims that same is not up to the grade bought. We have asked him to return shipment and guaranteed to replace same with material that was absolutely right. He refuses to do so, and states that he will not return it until he receives lumber to replace the lot he refused to accept. We have sold this car to another party, who asks for delivery. We believe that the original purchaser is making an unjust claim. Can we demand that the lumber be shipped back to us, as the party has refused to accept same and has not paid for it? In case he refuses to return it are we under any obligation to make a second delivery?
Reply: The purchaser in a case of this kind has no right to any material that previously belonged to the seller except under the contract which he has with the seller. When the seller sends the purchaser any lumber and the purchaser keeps it, he keeps it either wrongfully or else as being in compliance with his contract. But the courts will not allow any man to claim, for his own advantage, that he is a wrong-doer when there is a possible and reasonable explanation of his act which makes it lawful. For this reason, among others, a buyer of lumber when there has been no warranty of quality, who retains the lumber sent to him, and refuses to return it, is always held to retain it as being perfectly satisfactory and in compliance with the contract. Any complaint he may make about the delivery is of no importance; it is his act that counts. The courts will insist upon taking the most charitable view of his conduct, whatever he may say, and the most charitable view is that he is doing right, and not wrong, and is keeping the lumber because it is a good delivery under the contract. Our correspondents can demand that the lumber be returned if they choose to do so, but they cannot enforce the demand. If the buyer does return the lumber, in answer to such a demand, he will have a claim against the sellers for another delivery, and a valid one under the contract, or for a breach of the contract in failing to make a good delivery in the first place. If no such demand is made, or if it is made and not complied with, the buyer can be compelled to pay the contract price of the goods on the theory that his holding them is an acceptance under the contract. It is idle for him to say that he does not accept them; keeping them is acceptance. No second delivery need be made unless the first delivery is promptly and properly refused and returned.
Opinion No. 6.
OBTAINING CERTIFICATES PERMITTING FOREIGN CORPORATIONS TO DO BUSINESS AND MAINTAIN AN ACTION IN NEW YORK OR NEW JERSEY.
Almost every State in the Union, and especially the States of New York, New Jersey, Pennsylvania, Massachusetts, Connecticut, etc., require foreign corporations, that is, corporations formed under the laws of other States, to procure a license or certificate to do business within such State, and in default thereof penalties or fines are imposed.