Bassen v. Monckton

• Decision Date: 05 June 1925
• Docket Number: 24664
• Citation: 274 S.W. 404,308 Mo. 641
• Parties: CHARLES F. BASSEN, WILLIAM TREAT, JOHN WEBER and JOHN RUOFF, Copartners Doing Business as HANNIBAL WOOD WORKING COMPANY, and E. L. SEIBEL v. SUE M. MONCKTON, CHARLES J. MONCKTON, HANNIBAL MUTUAL BUILDING & LOAN ASSOCIATION, and THOMAS R. SCHOFIELD, Trustee, Appellants
• Court: Missouri Supreme Court

274 S.W. 404

308 Mo. 641

CHARLES F. BASSEN, WILLIAM TREAT, JOHN WEBER and JOHN RUOFF, Copartners Doing Business as HANNIBAL WOOD WORKING COMPANY, and E. L. SEIBEL v. SUE M. MONCKTON, CHARLES J. MONCKTON, HANNIBAL MUTUAL BUILDING & LOAN ASSOCIATION, and THOMAS R. SCHOFIELD, Trustee, Appellants

No. 24664

Supreme Court of Missouri

June 5, 1925

Appeal from Hannibal Court of Common Pleas; Hon. Charles T Hays, Judge.

Affirmed.

Schofield & Plowman for appellants.

(1) The contract, for the work done and materials furnished, was unlawful and illegal, because the name "Hannibal Wood Working Company" under which the partnership conducted all its business, was a fictitious name and the provisions of the statute were not complied with by the partnership prior to entering into the contract with appellants. Art. III chap. 122, R. S. 1919. (2) An illegal contract cannot be enforced either at law or in equity. Finley v Williamson, 202 Mo.App. 287; Burgess v. Manchester Investment Co., 186 S.W. 1144. (3) One cannot recover upon any contract made in violation of a criminal statute. Pulitzer Publishing Co. v. McNichols, 170 Mo.App. 722; Downing v. Ringer, 7 Mo. 585; Tri-State Amusement Co. v. Highland Amusement Co., 192 Mo. 401; Rothwell v. Gibson, 121 Mo.App. 279; Curran v. Down, 3 Mo.App. 471; Chasin v. Pliter, 168 Mich. 386; Am. Annot. Cases, 1913C, p. 697; 15 Amer. & Eng. Ency. Law (2 Ed.) 939.

Berryman Henwood for respondents.

(1) The statute in question was not intended to nullify, diminish or abridge the common-law right to contract, but merely to operate as a regulation of the exercise thereof. 9 Cyc. 466 to 483; French v. Baptist Church, 20 Mo.App. 332; Smythe v. Hanson, 61 Mo.App. 287; Tooker v. Duckworth, 107 Mo.App. 231; McConnon & Co. v. Haskins, 180 S.W. 22: O'Bannon v. Widick, 281 Mo. 478; Fritschle v. Casualty Co., 209 Mo.App. 347; Harris v. Runnels, 12 How. (U. S.) 79; Note, Amer. Ann. Cas. 1913C, p. 700; Smith v. Finch, 12 B. C. 186; Gay v. Seibold, 97 N.Y. 476. (2) The statute in question, if intended to invalidate a contract otherwise legal, is an attempt to deprive persons of their property without due process of law and is, therefore, clearly unconstitutional. Sec. 30, Art. II, Mo. Constitution; 3 Words and Phrases, p. 2227; Dartmouth College Case, 4 Wheat. 518; Cooley on Const. Lim. (6 Ed.) p. 431; 2 Story on Const. (5 Ed.) sec. 1950; Tiedeman on Lim. of Police Powers, sec. 178; State ex rel v. Gantt, 274 Mo. 520; State ex rel. v. Kimmel, 256 Mo. 641; State v. Baskowitz, 250 Mo. 100; State v. Railroad, 242 Mo. 358; State ex rel. v. McElhinney, 241 Mo. 606; State v. Distilling Co., 236 Mo. 298; White v. Railroad, 230 Mo. 318; Schwabe v. Moore, 187 Mo.App. 74; St. Louis v. Karr, 85 Mo.App. 614; Ex parte House v. Mayes, 227 Mo. 660; Wooley v. Mears, 226 Mo. 52; State v. Miksicek, 225 Mo. 576; State ex rel. v. Vandiver, 222 Mo. 258; Julian v. Kansas City Star Co., 209 Mo. 107; State ex rel. v. Eby, 170 Mo. 525; Clothing Co. v. Watson, 168 Mo. 146; Henderson v. Koenig, 168 Mo. 374; Hunt v. Searcy, 167 Mo. 179; State ex rel. v. Associated Press, 159 Mo. 456; In re Flukes, 157 Mo. 130; Owen v. Baer, 154 Mo. 470; State v. Smith, 138 Mo. 102; State v. Walsh, 136 Mo. 405; State v. Julow, 129 Mo. 172; State v. Loomis, 115 Mo. 312.

OPINION

White, J.

In the Hannibal Court of Common Pleas the plaintiffs brought suit to recover $ 736.77, for materials furnished by them to the defendant Sue M. Monckton, and used by her in constructing a building on her lot in the city of Hannibal. The plaintiffs asked judgment in that amount, and enforcement of mechanic's lien against the lot.

The defendants Sue M. Monckton and her husband, Charles J. Monckton, filed an answer denying the allegations of the petition, and for an affirmative defense alleged that the plaintiffs, Bassen, Treat, Weber and Ruoff, during all the times mentioned in the petition, were partners doing business under the name and style of the Hannibal Wood Working Company, and that the materials furnished, if any, were furnished by the plaintiffs under that name; that the name was not at the time the true name of the said partners, but was a fictitious name within the meaning of Article III, Chapter 122, Revised Statutes 1919; that never, during the time mentioned in plaintiff's' petition, nor within five days after engaging in nor while transacting business under said fictitious name, did the copartners register the said name "Hannibal Wood Working Company" in the office of the Secretary of State; that in furnishing the material without such registration, plaintiffs were guilty of a misdemeanor and therefore the contract by which such materials were furnished was illegal and void.

The plaintiffs in reply denied the allegations of the answer, averred that Article III, Chapter 122, Revised Statutes 1919, was in violation of Section 30, Article II, of the Constitution of Missouri, in that it sought to deprive persons of their property and property rights without due process of law.

For further reply the plaintiffs alleged that at the time of entering the agreement, and at the time said materials were furnished, the defendants knew the names and residence of each and every person interested in the said partnership; knew that said plaintiffs were conducting the partnership business in the name of the Hannibal Wood Working Company, and that the work and material were furnished at the particular request of defendants who, ever since receiving said work, have enjoyed the use and benefit of the same; defendants, therefore, were estopped to deny liability for plaintiffs' claims.

An agreed statement of facts appears in the reccord, in which it is admitted that the material was furnished, as alleged in the petition; that the plaintiffs, Bassen, Treat, Weber, and Ruoff were partners, doing business under the style of Hannibal Wood Working Company, buying and selling lumber, mill work, and other building material in the city of Hannibal; that the lien was filed within the proper time after the indebtedness had accrued; that the defendant Sue M. Monckton had no property subject to execution except the property upon which the plaintiffs sought to establish their lien, and that the plaintiffs had not filed with the Secretary of State the certificate required by Article III, Chapter 122, Revised Statutes 1919.

The Hannibal Mutual Building & Loan Association and Schofield were made parties because the association held on the property a deed of trust in which Schofield was trustee.

Charles F. Bassen, one of the plaintiffs, testified to transacting the business with Mr. Monckton as the husband and agent of Mrs. Monckton, when he told Monckton who owned the business and what the interests of the plaintiff were in it. The trial court rendered judgment for the plaintiffs, enforcing the lien, and the defendants appealed.

I. Appellants rely upon the effect of Article III, Chapter 122, Revised Statutes 1919, to invalidate the transaction. Section 13276 in that article is as follows:

"Sec. 13276. That every name under which any person shall do or transact business in this State, other than the true name of such person, is hereby declared to be a fictitious name, and it shall be unlawful for any person to engage in or transact any business in this State under a fictitious name without first registering same with the Secretary of State as hereinafter required."

Section 13277 provides that every person engaged in a business under a fictitious name shall, within five days, register such fictitious name in the office of the Secretary of State, together with the names of each person or corporation interested in said business, setting forth the interest of each.

Section 13279 is as follows:

"Sec. 13279. Any person who shall engage in or transact any business in this State under a fictitious name, as in this article defined, without registering such name as herein required, shall be deemed guilty of a misdemeanor."

Section 13280 provides that for the purpose of this article the word "person" shall be construed to include male and female, plural and singular, partnerships, associations, etc.

The appellants plant their case upon a proposition such as this, quoted from Curran v. Downs, 3 Mo.App. l. c. 471: "No court, however, can lend its aid to a person who founds his action on a violation of a positive law." That was a case where the plaintiff sold whiskey to the defendant, with the understanding that the defendant was to deal with it in violation of law, and it was held that the plaintiff could not recover the purchase price.

Appellants cite the case of Publishing Co. v. Nichols, 170 Mo.App. l. c. 722, where this is said: "The general principle of law that one cannot recover for the doing of an act, or upon any contract made, in violation of a criminal statute, is well settled. The principle is, that where the act is prohibited or declared unlawful, it is not necessary for the law to declare the act or contract void, but that an unlawful act, or a contract to do an unlawful act, is necessarily void." That was a case where the plaintiff, Pulitzer Publishing Company, printed an advertisement for the defendant on Sunday, contrary to the statute which prohibited labor, excepting work of necessity, on Sunday. It was held that the plaintiff could not recover on the contract for advertising.

An early leading case, Downing v. Ringer, 7 Mo. 585, is cited by the appellant in support of its position. In that case the plaintiff sued defendant for the price of a town lot sold to defendant before the filing of a plat of the addition in which the lot was situated, contrary to the statute which made it a misdemeanor to sell a lot in such an addition before the filing of such plat. The court held...