RANCH HOUSE SUPPLY CORPORATION, a California Corporation, Appellant,
Clague VAN SLYKE and Sally B. Van Slyke, his wife, and Lloyd Fuller and H. F. Voight, co-partners dba Lloyd Fuller Building Company, Appellees. RANCH HOUSE SUPPLY CORPORATION, a California Corporation, Appellant,
Clague VAN SLYKE and Sally B. Van Slyke, his wife, Appellees.
[91 Ariz. 178] Minne & Sorenson, Scott, Cavness & Yankee, Phoenix, for appellant.
[91 Ariz. 179] Wright, Goddard & Barry, Tucson, for appellees.
DON T. UDALL, Superior Court Judge.
This cause is a consolidated appeal of two actions between the same parties. In
each case a judgment was entered in the court below against the Ranch House Supply Corporation, plaintiff therein, and in favor of Clague Van Slyke and Sally B. Van Slyke, defendants. The first action rested upon a claim of a materialmen's lien for $2,594.70 and the second upon the sale of certain goods to defendants. The plaintiff will hereafter be referred to as appellant and the defendants as appellees.
Appellant is a California Corporation engaged in business in that state where it maintains a sales office and certain storage facilities. It fabricates and assembles 'do-it-yourself' package kits which are sold along with and in accordance with plans and specifications to construct residential houses known as 'Cliff May Homes'. Appellant markets these package units in parts of Arizona through franchise dealer agreements with one Lloyd Fuller, dba Lloyd Fuller Building Company, a licensed contractor doing business in Tucson, Arizona.
The dealer's contract with Fuller gave him the right to purchase the prefabricated parts from appellant for construction of houses in Tucson, Wilcox, Benson, Safford and Nogales for a period of three years for a consideration of $1,500, with the provision that if the agreement was terminated by either party according to the terms of the contract, Fuller was to receive a prorata refund of the consideration paid. The contract provides certain restrictions upon the dealer concerning his use of the prefabricated material sold to him and if appellant sold such material to anyone in the area granted to Fuller it would be at a price 20% higher than the prices currently charged to a dealer. It also required Fuller to purchase all of his parts and material from appellant for the construction of the 'Cliff May Homes,' which Fuller agreed to build. There were a number of other restrictive terms in the agreement which do not appear to be material and therefore, we will not burden this decision with a recitation of them.
The Materialmen's Lien
The first point raised concerns the status of appellant as doing business in this state without being licensed as required by A.R.S. § 10-481. If the appellant was doing business in the state within the meaning of the statute, its acts were void, A.R.S. § 10-482, but we are of the view that such is not the case. The burden was on the appellees to show that appellant was engaged in 'a reasonably substantial course of business' in Arizona. Monaghan & Murphy Bank v. Davis, 27 Ariz. 532, 537, 234 P. [91 Ariz. 180] 818 (1925); Martin v. Bankers' Trust Co., 18 Ariz. 55, 156 P. 87 (1916); and Nicolai v. Sugarman Iron & Metal Co., 23 Ariz. 230, 202 P. 1077 (1922). However, the appellees failed with their proof in this particular.
An examination of the evidence in the case convinces us that appellant cannot be said to have been doing business in Arizona. Its contract with Fuller was executed in California. The purchase price of the prefabricated material was fixed at the f. o. b. price in California and payment was to be made in California. The material was ordered by Fuller to be used in the construction of the Van Slyke home at their request. Therefore, Fuller as the contractor for the Van Slykes was their agent, so as to procure the attachment of a materialmen's lien. Lilley v. J. D. Halstead Lumber Co., 42 Ariz. 546, 28 P.2d 616 (1934); Watson v. Murphey, 36 Ariz. 377, 285 P. 1037 (1930).
One of the leading cases respecting doing of business by a foreign corporation so as to subject it to A.R.S. § 10-481 is Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945). There this Court announced the rather broad proposition that:
'Sales on consignment, factorage agreements, or sales on commission, by a foreign corporation to a dealer within the state, of products from without the state, do not constitute doing business within the state, where the local merchant
or factor acts entirely in his own behalf in making sales or contracts for the sale of such goods.' 63 Ariz. ...