Amalgamated Zinc and Lead Company v. Bay State Zinc Mining Company
| Citation | 120 S.W. 31,221 Mo. 7 |
| Parties | AMALGAMATED ZINC and LEAD COMPANY, Appellant, v. BAY STATE ZINC MINING COMPANY |
| Decision Date | 31 May 1909 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jasper Circuit Court, -- Hon. Hugh Dabbs, Judge.
Affirmed.
Thomas Dolan for appellant.
(1) Injunction is the proper remedy in this case, upon the pleadings and evidence set out in the record. Kamp v Schrader, 45 Mo. 505; Lytle v. James, 98 Mo.App. 337; Jack Harvard Co. v. Continental Zinc Co., 106 Mo.App. 66. (2) No part of the defense set up by defendant in its answer was proven, except the fact that when this suit was brought, appellant, a foreign corporation had not obtained a license to do business in the State of Missouri, but it was shown that shortly after bringing suit and long prior to the April term, for which said suit was brought, appellant was duly and regularly licensed to do business in Missouri. Under the ruling in the case of Carson-Rand Co. v. Stern, 129 Mo. 381, this has been held to be sufficient to entitle it to maintain this action. Besides, this action was brought, not to enforce some contract made in the course of business prohibited because of having no license, but to protect its property, to stay the hand of a tresspasser. It has not been held in this State that because a foreign corporation has neglected to comply with the law its property may be looted with impunity. On the contrary, it has been held in other jurisdictions that it can not be destroyed or taken from it. Railroad v. Fire Assn. (Ark.), 30 S.W. 350; Beale on Foreign Corp., sec. 252. It appears from all the evidence that defendant -- a mere tresspasser -- entered upon the mining lots of the plaintiff, and against its protest boldly took its ore, and continued to take same.
Cole, Burnett & Williams for respondent.
(1) Plaintiff's alleged cause of action is based upon rights it claims to have acquired under the assignment of a lease to it in 1904. At that time plaintiff was unlawfully engaged in business in Missouri, and long had been, as a foreign corporation without authority or license from the State. It legally acquired no rights under the lease. Its lease was void. 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; Bank v. Leeper, 97 S.W. 636; Wilson-Moline Buggy Co. v. Priebe, 100 S.W. 558; Roeder v. Robertson, 202 Mo. 522; United Shoe Machinery Co. v. Ramlose, 210 Mo. 649. (2) Plaintiff commenced this action in 1905; afterwards, in 1906, it complied with Sec. 1025, R. S. 1899, and so having failed to comply with the statute, when it attempted suit, could not "maintain any suit or action, either legal or equitable, in any of the courts of this State, upon any demand, whether arising out of contract or tort." R. S. 1899, sec. 1026. (3) If a right of action did not exist at the time the suit was brought, subsequent transactions by the plaintiff cannot be invoked to relieve plaintiff from the result of its premature conduct or its premature action in the court. TriState Amusement Co. v. Amusement Co., 192 Mo. 404.
Plaintiff, a corporation under the laws of New Jersey, on December 27, 1905, filed a petition in the circuit court of Jasper, the purpose of which was to enjoin and restrain the defendant from mining on the east half of a certain tract of ground known and described as Lot 107 in the northeast quarter of section 4, township 27, range 33, in Jasper county, Missouri, as shown by a certain plat of said ground for mining purposes as made out and posted by the Granby Mining & Smelting Company, the owner in fee of said ground. Plaintiff claimed the right to mine said east half of Lot 107 by virtue of mesne assignments of a license to mine that tract and other lots, given by the said Granby Mining & Smelting Company. The petition then charged that defendant had been mining on said tract and although notified not to so do, was still mining thereon, and after charging irreparable injury and damages and inadequate legal remedies, prayed for an injunction as aforesaid.
By the answer the defendant pleaded:
1. That plaintiff was a foreign corporation, and had not complied with the laws of this State by filing with the Secretary of State a copy of its charter or certificate of incorporation, and had no license to transact business in this State, and had no right to commence or maintain a suit such as this or any other in the courts of this State.
2. Defendant admitted its corporate capacity; admitted that it was in possession of that part of the premises described in plaintiff's petition, specifically describing the same by metes and bounds; admitted that it was mining on the same at the commencement of this suit; admitted that it had been so engaged long prior to the filing of the suit and purposed to continue said mining, but denied all other matters not specifically admitted.
3. Defendant further pleaded that it was mining on such disputed tract by virtue of an agreement with plaintiff, which agreement is described in detail, as well as defendant's conduct thereunder, and this portion of the answer concludes by a plea of estoppel.
4. Defendant avers that the petition does not state facts sufficient to entitle plaintiff to injunctive relief.
Reply was a general denial.
At the trial evidence was heard subject to objections and at the close of the plaintiff's case the court sustained a demurrer to the testimony.
Over the objection of the defendant the plaintiff put in the following documentary evidence: (1) certificate and license issued to plaintiff by the Secretary of State of Missouri, of date January 25, 1906; (2) mining license from Granby Mining & Smelting Company, of date March 1, 1899, to Rafael Estrada and covering the land in dispute; (3) written transfer of the above named mining license or lease from Rafael Estrada to W. W. Lowe, trustee, of date May 31, 1904; (4) written transfer of the first named license, of date October 14, 1904.
By oral proof it was shown that in March, 1906, the plaintiff got a new license or lease from the Granby Mining & Smelting Company; that plaintiff had been mining on the property covered by the Estrada lease since 1902; that W. W. Lowe was trustee for the plaintiff in the instrument made to him and described above; that plaintiff notified defendant to cease mining on the disputed tract, which was done for about three weeks and that then mining was resumed and continued until the granting of the injunction; that the ore was six per cent ore and valuable; that defendant purposed further operations on this land unless restrained by injunction. Such are the facts of the case. Counsel seem to agree that the court, nisi, dismissed plaintiff's bill on the theory that it had no license to transact any business in this State prior to January 25, 1906, and therefore could not maintain this suit, but whatever may have been the views below, we have detailed an outline of the facts, and can, as we have the right, proceed to determine the merits. Contentions of counsel both pro and con will be noted in the course of the opinion, so far as may be required.
I. There are two questions presented by this record, (1) can plaintiff, a foreign corporation, without license to do business in this State, but having actually been resident in the State, and transacting its charter business therein for some years, be permitted to bring an action in our courts, and after having so brought the action, be permitted to maintain and prosecute it, by taking out the required license before trial? And (2), if it can thus give itself a status or standing in our courts, can it further enforce contracts which it has made and which are to be fully performed in this State? Of these questions in their order.
We are inclined to think that both contentions must be answered in the negative. But they are so closely related that a discussion of the one necessarily involves the discussion of the other. That a foreign corporation can sue in Missouri on contracts made outside of Missouri, or made by salesmen traveling for them in Missouri, can sue in the courts of the State without license from the Secretary of State is unquestioned. But the question here is, can a foreign corporation come into this State, open up a place of business and actually do a part of the business authorized by its charter, in violation of our law and without taking out a license and otherwise complying with our statutes, have the doors of our courts open to them, to protect the unlawful business? We think not. If the petition in such cases disclosed the facts aforesaid it would be be demurrable. Whilst we have held that the plaintiff in such cases does not have to plead that it has a license to do business, and that the failure so to plead does not make the petition demurrable, United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, 109 S.W. 567, yet there can be no question that if it appeared upon the face of the petition that the plaintiff, a foreign corporation, had established a place of business in the State and had actually been doing business in the State, without a license, such a petition would be demurrable, because of the fact that it would disclose that the party plaintiff had no right to sue. Now advancing a step, if the party was incapacitated to sue at the institution of the suit, can such party cure such incapacity by taking out a license thereafter and before trial? We think not. There is diversity of opinion among the courts. Vide note to case of National Fertilizer Co. v. Fall River Five Cents Savings Bank (Mass.), 14 L.R.A. 561, et seq. The annotator, in discussing the right to maintain a suit before license is issued, but in which license was procured before...
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