#### Sprout, Waldron & Company, Appellant, vs. Amery Mercantile Company, Respondent.

*January 11*

February *1, 1916.*

*Unlicensed foreign corporations: Validity of contracts: Interstate-commerce: Sale of property located in the state.*

1. Where a foreign corporation sold to a Wisconsin corporation an-attrition mill which was located and had been used in this state- and also another mill which was to he shipped into the state, and the price of the former had been agreed upon, although the written contract of sale stated only the gross price for the two, the sale of the mill then in the state was not an interstate commerce-transaction, nor was it a necessary incident to the carrying on of such commerce.

2. The vendor corporation not having been licensed to do business in Wisconsin, the contract of sale was void under sec. 17706, Stats., in so far as it related to the mill then within the state.

Appeal from a judgment of tbe circuit court for Pollt county: W. E. QuiNLAN, Judge.

*Affirmed.*

Tbe plaintiff is a foreign corporation engaged in manufacturing machinery in tbe state of Pennsylvania and is not licensed to do business in Wisconsin. Through its agents it sold machinery in this state from time to time, such agents *280taking orders which were filled from the factory located at Muncy. In 1913 it sold, through one of its agents, to Boulay Brothers of Eond du Lac, an attrition mill manufactured by it. Under the contract of sale title was reserved in the plaintiff because the purchase price had not been fully paid. On June 12, 1913, the purchasers began to operate the mill. It was not satisfactory to them, probably because the motor furnished was unable to develop sufficient power to properly operate the machine. The purchasers refused to pay the purchase price, and thereupon a new agreement was made whereby the plaintiff agreed to ship a larger mill to take the place of the one then in use, in consideration of the return ■of the old mill and the payment of $125 additional to the price at which the old mill was sold. It was further agreed between the parties that until such time as the new mill was furnished and could be put in operation Boulay Brothers were to have the right to use the machine which had been installed. Under this arrangement the mill first shipped was used until about October 28th, when the new mill was installed and the old one was set aside. During the month of December, 1913, an agent of the plaintiff called on the defendant, a Wisconsin corporation, at .Amery, Wisconsin, and entered into a contract with the defendant for the purchase and sale of two mills, one of them being the mill at Eond du Lac, and the other to be shipped from the factory in Pennsylvania. The contract stated the gross price to be paid for the two mills, but did not specify the amount agreed upon for each one of the mills. It was also agreed that some extras were to be furnished both for the Fond du Lac mill and the one to be shipped from the factory. It was shown in the testimony without dispute that the agreed price of the mill at Fond du Lac was $725. Both mills were delivered according to contract, and defendant refused to pay the agreed price, claiming that the condition of the mill at Eond du Lac was misrepresented by the agent. The issues raised by the pleadings were submitted to a jury, which returned a verdict *281in favor of tbe plaintiff for $362.50 on account of tbe Eond du Lac mill. Tbe court set aside tbis verdict and ordered the-complaint dismissed on tbe ground tbat, plaintiff being a foreign corporation not authorized to do business in tbe state, tbe contract was void and no recovery could be bad thereon. From tbis judgment plaintiff appeals.

Eor tbe appellant tbe cause was submitted on tbe brief of *J. W. Boderberg.*

Eor tbe respondent, there was a brief by *W. N. Fuller,*attorney, and *W. T. Kennedy,*of counsel, and oral argument by *Mr. Fuller.*

Barkes, J.

In tbis case it is held:

1. Tbat tbe sale of tbe mill at Eond du Lac was not an interstate commerce transaction, nor was it a necessary incident to tbe carrying on of such commerce.

2. Tbat tbe contract, in so far as it involved such mill, was a contract relating to property within tbe state and was void under sec. *1770b,*Stats.

*By the Gourt.*— Judgment affirmed.