Chuse Engine & Mfg. Co. v. Vromania Apartment Co.

• Citation: 133 S.W. 624,154 Mo. App. 139
• Parties: CHUSE ENGINE & MFG. CO. v. VROMANIA APARTMENT CO.
• Decision Date: 30 December 1910
• Court: Court of Appeal of Missouri (US)

133 S.W. 624

154 Mo. A. 139

CHUSE ENGINE & MFG. CO. v. VROMANIA APARTMENT CO.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

Rehearing Denied January 24, 1911.

1. COMMERCE (§ 40) — INTERSTATE COMMERCE — STATE STATUTES — APPLICABILITY.

A foreign corporation manufacturing its machinery in the state of its origin constituted a resident of Missouri its sales agent in Missouri and other states. The contracts procured by the agent for machinery were not effective until approved by the foreign corporation at its home office. The agent procured a contract for machinery for a resident of Missouri, and the foreign corporation accepted it and manufactured the machinery called for. The contract called for delivery f. o. b. cars at the home office of the corporation, and required it to furnish men, if required, to start the machinery. The agent had no power to make collections, and he was paid by the foreign corporation from its home office. The foreign corporation performed its part of the contract. It had no property in Missouri. Held, that the transaction was interstate commerce, and Rev. St. 1909. §§ 3037, 3039, 3040, requiring a foreign corporation to obtain a certificate to do business in the state in order to sue in the courts of the state, did not prevent the foreign corporation from maintaining an action on the contract in the courts of Missouri.

2. COURTS (§ 91) — DECISIONS — CONTROLLING EFFECT.

The Court of Appeals has no power to pass on constitutional questions, but must accept as final the decision of the Supreme Court adjudging the constitutionality or unconstitutionality of a statute, until it is overthrown by the Supreme Court itself.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by the Chuse Engine & Manufacturing Company against the Vromania Apartment Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Vital W. Garesche and A. G. Moseley, for appellant. Stern & Haberman, for respondent.

REYNOLDS, P. J.

By its petition in this case, plaintiff, averring that it is a corporation organized and existing under the laws of the state of Illinois and engaged in business at Mattoon, in that state, and that defendant is a corporation organized under the laws of the state of Missouri, sets out that defendant entered into a contract with it, under and by the terms of which plaintiff contracted and agreed to furnish and erect for defendant two high-speed automatic engines and two electric generators, all to be delivered and erected for the agreed and stipulated price of $3,975; that under the terms of the contract and at the special instance and request of defendant, plaintiff, as original contractor with defendant, furnished, delivered, and erected the engines and the electric generators in and upon a certain building situated upon lots in the city of St. Louis, averred to be the property of defendant. It is further averred that the reasonable market value of the machinery is $3,975, and that it was furnished and erected under one general bid or proposition in writing made by plaintiff to defendant and accepted by defendant in writing; that defendant has paid on account of that sum $900 and no more, leaving a balance due of $3,075 unpaid and long since due. The terms of payment under the contract are set out, and the necessary facts to entitle plaintiff to a mechanic's or materialman's lien are averred. It is further set out in the petition that other parties named as defendant claim some interest in the property upon which the building is situate, but it is not necessary to consider this part of the petition, as no judgment went against these parties. Judgment is prayed for $3,075, with interest from the 23d of December, 1907, and costs, and also for a special judgment and execution against the property sought to be charged. The answer upon which the case went to trial was a general denial and the affirmative defense that plaintiff, at the time of making the contract sued on, was a foreign corporation organized and existing under and by virtue of the laws of the state of Illinois, resident and doing business in this state now and at the date of making the contract; that it was not licensed or authorized to do business in this state, as required by what are now sections 3037, 3039, 3040, Rev. St. 1909, at the time of making the contract sued on, nor had it filed or had on file in the office of the Secretary of State a copy of its charter or certificate of incorporation, nor had it since that date, in accordance with the provisions of the statutes, made a sworn statement of the proportion of its capital stock represented by property located and business transacted in this state, nor had it paid the incorporation fees required by the above sections, nor had it received from the Secretary of State a license as a foreign corporation to do business in this state; wherefore defendant avers that the alleged contract set out in plaintiff's petition was and is void and of no effect and is not enforceable. The reply was a general denial.

The cause was first tried before the Honorable Robert M. Foster and resulted in a verdict for plaintiff, returned under a peremptory instruction by the court. That verdict was set aside for error in that instruction, in that it directed the jury to find a specified sum in favor of plaintiff. The case was then tried before the court and a jury, the Honorable George H. Williams presiding. Evidence was introduced on the part of plaintiff, tending to show that it had furnished the machinery specified in the petition. The ownership of defendant of the lots upon which the building stood and in which the machinery was erected, and the proper filing of the lien papers, was in evidence and not controverted. It further appeared by the evidence that one Parker had a contract with plaintiff, to the effect that Parker was constituted the sales agent for the engines and generators manufactured by plaintiff, in the states of Missouri, Arkansas, and parts of Kansas, Illinois, Oklahoma, and the Indian Territory. Under this sales agency contract, plaintiff agreed, among other things, not to sell engines of its manufacture direct to purchasers in Parker's territory and to refer all inquiries for prospective purchasers in the territory to him, and to assist him, where possible, by furnishing information by correspondence, to effect sales. Plaintiff also agreed to exercise diligence to prevent the purchase of its engines by other parties in the United States for shipment into Parker's territory, and agreed to refuse to sell to any other person or corporation engines for shipment in his territory; "it being the policy of the firm [meaning by "firm," the plaintiff] to the best of its ability, to protect all its agents in their profits on sales in their territory." Plaintiff was also "to pay the agent the difference between the price of the engines to the agent, f. o. b. cars Mattoon, Ill., and the price at which they are sold. Payment of said difference shall be made pro rata as the firm receives settlement from the purchaser." Parker agreed on his part to devote so much of his time and energies to the sale of the engines, manufactured by plaintiff, "as is necessary to properly and energetically introduce and sell the said engines," and agreed that he would "not accept the agency or use his influence to sell any other make of horizontal, high-speed, automatic engines." It was further understood that the net price to the agent in special cases might be arranged at the time of the sale to suit the circumstances by mutual agreement between the parties; the net price as established being subject to change or correction from time to time by plaintiff. It was further agreed that Parker was to use plaintiff's regular blanks "when submitting proposals for engines; and no proposal shall become binding upon the firm until formally approved and accepted by the firm, at its general office at Mattoon, Ill." It is further provided that Parker was not authorized by the contract to make collections or receive money in payment on contracts, but that after acceptance of the order by plaintiff, plaintiff assumes all risk of collection, and that on all contracts when accepted by plaintiff, the latter would guarantee agent's commission, except when the contract is not fulfilled on account of purchaser not being financially responsible, or when purchaser refuses to accept delivery, due to causes beyond the control of plaintiff. The contract was to be in force not less than five years, ending February 1, 1912, unless sooner terminated by either party giving 60 days' written notice to the other. It appeared that Mr. Parker subsequently organized a corporation called Parker-Kohn Engineering Co., and which latter corporation took over the sales agency contract which Parker had before then held with plaintiff. Acting under this sales agency contract, the Parker-Kohn Engineering Co. presented to defendant a proposal for the machinery mentioned in the petition. This proposal was on a blank headed, "Proposal for `Chuse' Engine. Chuse Engine & Manufacturing Company, Manufacturers, Mattoon, Ill. Presented by P-K Engineering Company, 1117-1118 Chemical Building, St. Louis. To Vrooman Apartments Co., City." Plaintiff, in this paper, proposed to furnish the machinery referred to, describing it in particular; the Chuse Engine & Manufacturing Co. to deliver the machinery f. o. b. cars in Mattoon, Ill. The time of delivery was specified and, as extras to the engine proper, two electric generators were to be delivered and erected, and, if required, plaintiff was to furnish a man to start the engine at so much a day, defendant to pay board and expenses, and if purchaser (defendant) did its own erection, it was to assume responsibility for any faulty erection. It was further agreed that when the engine was taken from the cars the purchaser was to be responsible for its care and...