United Shoe Machinery Co. v. Ramlose
| Decision Date | 31 March 1908 |
| Citation | 109 S.W. 567,210 Mo. 631 |
| Parties | UNITED SHOE MACHINERY COMPANY v. CHRISTIAN E. RAMLOSE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court. -- Hon. E. M. Dearing, Judge.
Reversed and remanded (with directions).
C. J Anderson and Bond, Marshall & Bond for appellant.
(1) The amended petition does not state facts sufficient to constitute a cause of action. The petition alleges that the plaintiff is a Maine corporation. It does not allege that it has complied with the laws of this State. A foreign corporation that has not complied with the laws of this State cannot maintain an action in this State. Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404; State ex inf. v. Standard Oil Co., 194 Mo. 124; Mill & Lumber Co v. Sims, 197 Mo. 507; Wilson-Moline Buggy Co. v Priebe, 100 S.W. 558; Roeder v. Robertson, 100 S.W. 1086. An averment of compliance is necessary. Compliance is a constitutive fact that must be pleaded before it can be proved. Pier v. Heinrichhoffen, 52 Mo. 336. (2) A foreign corporation cannot transact business in Missouri until it complies with the laws of this State, and contracts made by a non-complying corporation are void, and no action can be maintained on them. Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404; Mill & Lumber Co. v. Sims, 197 Mo. 507; Wilson-Moline Buggy Co. v. Priebe, 100 S.W. 558; Roeder v. Robertson, 100 S.W. 1086. (3) An assignee of a chose in action takes it subject to all equities, burdens and off-sets between the original parties. If it is void in the hands of the assignor it is void in the hands of the assignee. 2 Am. and Eng. Ency. Law (2 Ed.), 1080; Sumrall v. Ins. Co., 40 Mo. 27; Babb v. Taylor, 56 Mo. 311; Chouteau v. Allen, 70 Mo. 342; Ehrhardt v. Robertson, 78 Mo.App. 404; Williams v. Scullin, 59 Mo.App. 30; Miller v. Ammon, 145 U.S. 421; Diamond Glue Co. v. U. S. Glue Co., 147 U.S. 611; Dunaway v. Day, 163 Mo. 426; Bank v. Owens, 2 Pet. 527. (4) The plaintiff is not an assignee of the New Jersey Company, but simply its attorney in fact and sues only in its right. (5) The pretended assignment by the New Jersey Company to the plaintiff is a mere scheme to evade the laws of Missouri. (6) The contract was to be performed in St. Louis. It was, therefore, a Missouri contract. The lex loci solutionus governs. Diamond Glue Co. v. U. S. Glue Co., 187 U.S. 613; McCanna & Fraser Co. v. Surety Co., 76 F. 420; South Amboy Terra Cotta Co. v. Poerschke, 9 N.Y.S. 333; Delaware, etc., Const. Co. v. Railroad, 53 A. 533; 9 Cyc., 669, 674; Bank v. Earle, 13 Pet. 519. (7) The New Jersey Company was transacting business in Missouri. Cases cited under point 3, supra.
Robert & Robert for respondent.
(1) (a) The petition stated a cause of action. (b) It is not necessary to verify the petition in an action for replevin. All that is necessary in order to obtain possession of the goods sued for in such an action is to file a petition in the usual form, alleging that the goods are unlawfully detained, together with a bond and an affidavit in the language of the statute, the latter to be verified and filed when the petition is filed, or afterward. R. S. 1899, sec. 4463; Bank v. Ragsdale, 158 Mo. 681; Schaeffer v. Faldwesch, 16 Mo. 337; Stone v. Barrett, 34 Mo.App. 15; Martin v. Block, 24 Mo.App. 60; Bosse v. Thomas, 3 Mo.App. 472. (c) No allegation that the cause of action accrued within one year is necessary in the petition. If that allegation is in the affidavit, the only effect is to prevent the defendant's giving a forthcoming bond, and in this case the defendant offered none. This does not affect the cause of action. R. S. 1899, sec. 4468; Guthrie v. Weaver, 1 Mo.App. 136. (2) (a) In a suit brought by a foreign corporation, it is not necessary to allege in the petition that the corporation is licensed to do business in this State. The burden of proving the non-license is upon the defendant. Ins. Co. v. Smith, 73 Mo. 368; Seay v. Sanders, 88 Mo.App. 486; State to use v. Hudson, 86 Mo.App. 513; Parlin & Orendorff v. Bank, 84 Mo.App. 72; Blevins v. Fairly, 71 Mo.App. 259; Shargin v. Cutler, 106 Ind. 242; Cassaday v. Ins. Co., 72 Ind. 95; Nichols v. Building Assn., 93 Va. 380; Mason v. Thompson Co., 94 Minn. 477; Coal Co. v. Gilmore, 93 Minn. 432; Langworthy v. Garding, 74 Minn. 325; Brown v. Investment Co., 102 S.W. 138; 6 Thompson, Corporations, sec. 7966. (b) Constitutive facts are those facts only which constitute plaintiff's cause of action, and do not relate to the capacity of the plaintiff to sue. Chemical Works v. Nemnich, 169 Mo. 397; Pier v. Heinrichhoffen, 52 Mo. 336; Wilbur v. Railroad, 110 Mo.App. 693. (c) Though the petition is silent on this feature, the plaintiff proved without this objection on the part of the defendant, that it had a license to do business in this State. (3) (a) The defendant in replevin must in his answer claim the goods and demand a return thereof, otherwise, the court cannot give a judgment in defendant's favor for the goods or the value thereof. R. S. 1899, sec. 4473; Young v. Glasscock, 79 Mo. 577; Pallen v. Bogy, 78 Mo.App. 98; Chemical Co. v. Nickels, 66 Mo.App. 689; Fowler v. Carr, 55 Mo.App. 145; Clinton v. Stovall, 45 Mo.App. 642. (b) The defendant confessed in his answer that certain of the machines sued for at the time the leases were made, were the property of the United Shoe Machinery Company of New Jersey; that the New Jersey Company sold, assigned and transferred these machines to the plaintiff; that he, the defendant, obtained possession of the said machines from the New Jersey Company, and charges in the answer that the documents by which he, the defendant, obtained possession of the said machines were void. He traced his title in the answer through, what he claims to be, void instruments, hence the defendant disclaims any title or right of possession in himself. (4) (a) The contract covering all the machines sued for in this case was made in Massachusetts. Hauck v. Sharpe, 83 Mo.App. 385; Brewing Co. v. Bobrecker, 79 Mo.App. 65; Kerwin v. Dorin, 29 Mo.App. 397; U. S. v. Telephone Co., 29 F. 17; Aultman Miller & Co. v. Holder, 68 F. 467; Tayloe v. Ins. Co., 9 How. 397; Mack v. Lee, 13 R. I. 293; Glass Co. v. Taylor, 34 S.W. 711; Jameson v. Gregory, 4 Metc. 363; Milliken v. Pratt, 125 Mass. 374; Dodd v. Bonafee, 6 La. Ann. 563; Ins. Co. v. Tuttle, 40 N. J. L. 476; Shelby Tube Co. v. Gun Co., 40 N.Y.S. 871; Galloway v. Ins. Co., 31 S.E. 969; 2 Parsons, Cont., sec. 582; Lawson on Cont., sec. 32; Wharton on Conf. Laws, secs. 406-421; 3 Am. and Eng. Ency. Law, 547; Bishop on Contr., sec. 1389. (b) The fact that the machinery involved in the contract was to be used in Missouri by the defendant, has no effect upon the validity of the contract. The validity is to be determined by the lex loci contractus, unless it is a contract which is opposed to the public policy of Missouri. Houghtaling v. Ball, 19 Mo. 84; Houck v. Sharpe, 83 Mo.App. 391; Blevins v. Fairly, 71 Mo.App. 259; U. S. v. Telephone Co., 29 F. 17; Henry v. Iron Works, 62 P. 904; Fitzsimmons v. Guanahain, 16 S.C. 192; In re Paige, 31 Minn. 136; Bishop on Contr., sec. 1382. (c) The validity of the contract is always determined by the lex loci contractus. Tri-State Co. v. Amusement Co., 192 Mo. 404; Long v. Long, 141 Mo. 352; Salee v. Chandler, 26 Mo. 124; Houghtaling v. Ball, 19 Mo. 84; Roach v. Foundry, 21 Mo.App. 118; State ex rel. v. Carroll, 6 Mo.App. 263. (d) It can hardly be said that a contract for the leasing of machinery on a royalty basis would be opposed to the public policy of Missouri. (e) Contracts made outside of the State of Missouri by corporations, if valid where made, will be enforced in this State even though the plaintiff is a corporation not licensed to do business in this State. Roeder v. Robertson, 100 S.W. 1086; Tri-State Co. v. Amusement Co., 192 Mo. 404; Blair v. Ins. Co., 10 Mo. 559; Blevins v. Fairly, 71 Mo.App. 259; Maxwell v. Edens, 65 Mo.App. 440; Heating Co. v. Fixture Co., 60 Mo.App. 148. (f) Mere solicitation of business and collection of money therefor is not doing business in this State, in the sense of the statute. Bank v. Leeper, 121 Mo.App. 688; Beard v. Publishing Co., 71 Ala. 60. (5) Even though the leases and the contract under which the defendant obtained possession of the machinery were void, the lessor retained the title to the property, and had a right to sell the same, and the lessor itself had the right to recover the possession of the same, through an action in replevin, in this State, although the lessor, a foreign corporation, did not have a license to do business in this State. Therefore, the assignee could recover. Roeder v. Robertson, 100 S.W. 1089. (6) The leases were not void, as being in restraint of trade. Ferry Co. v. Railroad, 73 Mo. 389; Peltz v. Eichele, 62 Mo. 171; Presbury v. Fisher, 18 Mo. 50; Skrainka v. Scharinghausen, 8 Mo.App. 522; Railroad v. Pullman Co., 139 U.S. 79; Olmsted v. Distilling Co., 77 F. 265; Goddard v. American Queen, 59 N.Y.S. 46; Matthews v. Associated Press, 15 N.Y.S. 887; Ferris v. Brewing Co., 155 Ind. 539; Wharton on Contr., sec. 421; 1 Parson on Contr., sec. 483; Story on Contr., sec. 285.
This is an action in replevin, begun in the circuit court of the city of St. Louis on April 8, 1903, to recover certain shoe-making machinery. On application of the defendant the venue of the action was changed to St. Louis county, and thereafter, on application of the plaintiff, the venue was changed to Jefferson county. The trial resulted in a verdict and judgment for the plaintiff for the possession of all the machines specified in the petition, and the sum of one dollar damages, from which judgment, after ineffectual motions for new trial and in arrest, defend...
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