Weishaar v. Butters Pump & Equipment Co., Inc.

• Decision Date: 06 May 1939
• Docket Number: 34263.
• Citation: 149 Kan. 842,89 P.2d 864
• Parties: WEISHAAR v. BUTTERS PUMP & EQUIPMENT CO., Inc.
• Court: Kansas Supreme Court

89 P.2d 864

149 Kan. 842

WEISHAAR v. BUTTERS PUMP & EQUIPMENT CO., Inc.

No. 34263.

Supreme Court of Kansas

May 6, 1939

Rehearing Denied June 16, 1939.

Syllabus by the Court.

A foreign corporation which was not authorized to do business within the state, and which did not designate an agent within the state on whom service of judicial process on the corporation could be effected, but which became obligated for sums of money arising out of business transactions occurring in the state, was not entitled to plead the statute of limitations in defense to an action to recover the money which it owed. Gen. St.1935, 17-501, 17-509, 17-510; 60-306 subd. 2.

A foreign corporation not authorized to do business in Kansas and which has not designated an agent in this state on whom service of judicial process on it may be effected, but which became obligated for sums of money arising out of business transactions which occurred in this state, is not entitled to plead the statute of limitations in defense to an action by plaintiff to recover thereon.

Appeal from District Court, Scott County; Fred J. Evans, Judge.

Action by George L. Weishaar against the Butters Pump & Equipment Company, Incorporated, to recover for services performed by the plaintiff at the defendant's request. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Leo T Gibbens, of Scott City, for appellant.

R. D Armstrong and D. B. Lang, both of Scott City, for appellee.

DAWSON Chief Justice.

This appeal presents the question whether the statute of limitations runs in favor of a foreign corporation not authorized to do business in Kansas, the cause of action having arisen in this state.

On February 1, 1934, one Claude Hughes owned a tract of land near Scott City. He entered into a contract with defendant to drill and equip an irrigation well on his property. Then defendant made an oral agreement with this plaintiff whereby he undertook the actual work of drilling for an agreed price of $1,265, of which defendant was to pay $265 and Hughes was to pay $1,000. Plaintiff promptly drilled the well. Hughes paid his share. Defendant failed to pay. Hence plaintiff's first cause of action.

Shortly after drilling the well, defendant employed plaintiff to pull and reset the irrigation pump. For this service defendant agreed to pay $1.50 per hour. The work required 40 hours of service. Defendant failed to pay. Hence plaintiff's second cause of action.

These contractual undertakings of plaintiff were completed on March 30, 1934. This action was begun on May 11, 1938-- more than three years after the causes of action accrued. On May 12, 1938, an order of attachment was issued and the sheriff levied on certain property of defendant in Scott county. On the same day summons was served on the president of the defendant corporation. Bond was given forthwith to discharge the attachment.

To plaintiff's petition defendant lodged a demurrer on various grounds, but particularly on the bar of the three years' provision of the statute of limitations. G.S. 1935, 60-306, 2nd clause. This demurrer was overruled. Defendant declined to plead further, and judgment was entered for plaintiff. Hence this appeal.

We have a statute (G.S.1935, 17-509) which in substance provides that where a foreign corporation does business in this state but has failed to obtain authority to do so in conformity with our corporation law and has not appointed the secretary of state as agent upon whom service of summons or other process can be had, any person having a cause of action against it which arose out of its doing business in this state may file suit against it and serve summons on the secretary of state, who in turn is directed to send to the secretary of such foreign corporation by registered mail a copy of the summons and a copy of plaintiff's petition and likewise to send a copy of the summons and of the petition to the corporation itself. The requisite addresses of the corporation and its secretary must be supplied by plaintiff. The secretary of state's return of such summons with a recital of his doings thereon shall have the same force and effect as though service of process had been made by the sheriff in the usual manner. Thirty days after service thus performed, it shall be deemed complete.

The next section of the same statute (G.S.1935, 17-510) provides that the foregoing method of service shall be deemed cumulative of any other service sanctioned by the civil code.

To obtain authority to do business in Kansas, a foreign corporation must apply to the state charter board as prescribed in G.S.1935, 17-501. Its application, among other recitals, must set forth:

"(3) The place where the principal office or place of business in this state is to be located.

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"(7) The written consent of the corporation, irrevocable, that actions may be commenced against it in the proper court of any county in this state in which a cause of action may arise or in which the plaintiff may reside by the service of process on the secretary of state, and stipulating and agreeing that such service shall be taken and held, in all courts, to be as valid and binding as if due service had been made upon the president and secretary of the corporation ***."

The general trend of judicial opinion is that where a foreign corporation has complied with local statutory requirements, it is entitled to the benefit of the local statute of limitations. State v. St. Louis & S. F. Railroad Co., 81 Kan. 404, 408, 105 P. 685; Mortgage Co. v. Northwest Thresher Co., 14 N.D. 147, 103 N.W. 915, 70 L.R.A. 814, 116 Am.St.Rep. 642, 8 Ann.Cas. 1160; 14 C.J. 1401 et seq.; 18 Fletcher Cyc.Corp. Sec. 8676; Anno., Foreign Corporation--Limitation of Actions, 59 A.L.R. 1336 et seq.

This court has held that a foreign corporation engaged in interstate commerce is entitled to plead the statute of limitations. Doherty v. Kansas City Star Co., 143 Kan. 802, 57 P.2d 43.

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