F. E. Creelman Lumber Co. v. De Lisle

• Decision Date: 26 April 1904
• Citation: 107 Mo. App. 615,82 S.W. 205
• Parties: F. E. CREELMAN LUMBER CO. v. DE LISLE.
• Court: Missouri Court of Appeals

82 S.W. 205

107 Mo. App. 615

F. E. CREELMAN LUMBER CO. v. DE LISLE.

St. Louis Court of Appeals. Missouri.

April 26, 1904.

FOREIGN CORPORATIONS — RIGHT TO MAINTAIN SUIT — CERTIFICATE — SUBMISSION TO JURY — WAIVER OF OBJECTION — ERRONEOUS ADMISSION OF EVIDENCE — SALE — DELIVERY — PASSING OF TITLE.

1. Though plaintiff, a foreign corporation, did not obtain its certificate to do business in the state till after the suit was begun, though before the trial, this was not ground for objection to introduction of testimony by it.

2. The parties having, by their instructions, submitted the construction of a contract to the jury, may not complain that the court did not interpret it, and are concluded by the jury's construction.

3. In an action for conversion of lumber claimed by plaintiff under a contract of sale, admission of evidence tending to show violation of the contract by plaintiff in tearing down and scattering other piles of lumber of the seller is prejudicial error, the answer setting up no counterclaim for violation of the contract, and alleging no specific violation thereof.

4. Under a contract reciting that L. "hereby sells and agrees to deliver to C. at certain prices all the lumber L. has on hand at the time and the entire output of L.'s mill for a certain period providing that L. shall lease to C. ground on which L. agrees to pile the lumber as sawed, that after it is piled, C., on the 1st of each month, shall estimate the amount of lumber piled, and the piles so estimated shall be marked with C.'s initials and numbered; that on the estimates C. shall advance to L. $5 per thousand feet on the piled lumber; that L. shall load the lumber on cars, without charge, and C. shall inspect it as it is taken from the piles to be loaded on the cars; that C. shall not be bound to accept and pay for all lumber cut and piled, but such lumber only as fills requirements of the contract" — there is a delivery to C., and the title passes to him, on the lumber being stacked, estimated marked with his initials, and the $5 per thousand being paid by him on the estimate.

Goode, J., dissenting.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by the F. E. Creelman Lumber Company against Edward De Lisle. Judgment for defendant. Plaintiff appeals. Reversed.

W. H. Miller, for appellant. R. B. Oliver, for respondent.

Statement.

BLAND, P. J.

Plaintiff is an Illinois corporation, having its chief office in the city of Cairo, in said state. The defendant is a member of a copartnership composed of himself, his brother, Alfonso De Lisle, and one Boon, doing business in New Madrid county, Mo., under the firm name of De Lisle Bros. & Boon. The firm owns a sawmill known as the "Jones Mill," at Portageville, New Madrid county. On November 8, 1899, the plaintiff and De Lisle Bros. & Boon entered into a written contract, whereby it was stipulated and agreed that plaintiff would take all the lumber sawed by the firm at the Jones Mill from November 8, 1899, to January 1, 1901, at prices agreed upon of various kinds and grades of lumber, including first and second red gum at $18 per thousand feet, and common and shipping cull gum at $7 per thousand feet, to be delivered to the plaintiff f. o. b. at the mill; plaintiff to pay cash, less 2 per cent., when measured and inspected by its authorized inspector "as loaded on cars at said mill"; all lumber, except oak and ash, to be delivered dry on cars. The contract contains the following provisions: "It is further agreed between the parties to this contract that between the first and tenth day of each month, during the period of this contract, beginning Dec. 1, 1899, said party of the first part [plaintiff] shall estimate the amount of lumber said party of the second part has in completed piles, on hand at his mill, and the lumber so estimated shall be marked `F. E. C. L. Co.,' and each pile numbered and said party of the second part shall give to said party of the first part a written lease of the ground, on which said lumber is piled, without expense to said party of the first part. Said lease to extend over a period sufficiently long to enable said party of the first part to ship out lumber so manufactured and sold by said party of the second part to said party of the first part, and upon receipt of said lease said party of the first part agrees to advance on said lumber the sum of five dollars per thousand feet for all lumber in completed piles, except oak and ash, and ten dollars per thousand feet on completed piles of oak and ash lumber. Said advance so made to be charged to said party of the second part, and said party of the first part is to credit said party of the second part any and all lumber shipped on said amount of money so advanced, until money so advanced has been paid to said party of the first part, and then said party of the first part agrees they will pay in cash, according to terms of this contract, any and all moneys due said party of the second part, after said money is so advanced, shall have been paid. It is further agreed that said party of the first part will charge no interest to said party of the second part on said advance so made, but shall credit the full amount of the lumber shipped, until said advances so made are paid, as above mentioned. It is further agreed that said authorized inspector of said party of the first part shall inspect, measure and receive the above mentioned lumber, in accordance with the terms of this contract, and render to said party of the second part, upon each car so loaded, a statement of the contents of said car, and said party of the second part shall receive from said party of the first part a credit memorandum for each and every car shipped out, promptly upon receipt of said advice, from said party of the first part, at their office."

The petition, omitting caption, is as follows: "Plaintiff, for its cause of action, says it is a corporation organized under the laws of the state of Illinois, engaged in the manufacture of lumber. That on the 1st day of November, 1901, it was, has been ever since, and is now the owner of and entitled to the possession of forty-five (45) stacks of lumber stacked near the mill of De Lisle Bros. & Boon near Portageville, in New Madrid county, Missouri. That each of said stacks was plainly marked or branded `F. E. C. L. Co.' That said forty-five (45) stacks contained 323,880 feet of lumber of the value of eighty cents per hundred feet, or two thousand five hundred and ninety-one and forty-hundredths dollars. That the defendant afterward, and while plaintiff was the owner of and entitled to the possession of said lumber, wrongfully and unlawfully converted the same to his own use, to plaintiff's damage in the said sum of $2,591.40, for which sum, together with its cost and six per cent. interest thereon from the date of conversion, plaintiff prays judgment."

The answer was, first, a general denial, and, second, a statement of the written contract and the following special allegations: "Defendant further states that the forty-five stacks of lumber described in its petition is a part of the lumber that De Lisle Bros. & Boon cut at their mill, and that plaintiff has never paid defendant or the De Lisle Bros. & Boom for manufacturing the same, and that the plaintiff's claim to ownership in and to said forty-five stacks of lumber described in its petition is bottomed upon its contract with De Lisle Bros. & Boon, made and executed as aforesaid on the 8th day of November, 1899, and the plaintiff has no other right, title, claim or interest in and to said lumber, except what it has through said contract, if in fact it has any, and defendant denies that plaintiff has any right, title, claim, or interest in said lumber. The defendant now states and charges that at the time of the making of said contract on the 8th day of November, 1899, this plaintiff had not complied with sections 1024, 1025, of the Revised Statutes of Missouri of 1899, and that it had not filed in the office of the Secretary of State of Missouri a copy of its charter or articles of incorporation, and had not filed in the office of said Secretary of State of Missouri a certificate or a copy of its incorporation by the Secretary of the State of Illinois. That plaintiff, at the time of the institution and bringing of this suit, had failed, neglected, and refused to comply with said sections of the Revised Statutes of Missouri, and had failed, neglected, and refused to file in the office of the Secretary of State of Missouri a copy of its charter or articles of incorporation, or a certificate or a copy of its incorporation, as provided in said sections. The defendant further avers that the Secretary of the State of Missouri has never given or granted to the plaintiff a certificate showing compliance on its part with the laws of the state of Missouri, authorizing it to do business in Missouri; and so the defendant now states and charges that the plaintiff's contract made as aforesaid with De Lisle Bros. & Boon on the 8th day of November, 1899, was made, and is now, in violation of the laws of the state of Missouri, and that the same cannot be maintained or enforced in this cause, or in any other court in this state, and that the plaintiff has no right or standing in this suit or any other suit for the enforcement of a contract made in violation of the law; and defendant now pleads these facts and provisions of said statute as a bar for the further prosecution of this cause by the plaintiff. Wherefore, having fully answered, he again prays to be discharged with costs."

The forty-five stacks of lumber mentioned in the pleadings were all gum lumber. They had been stacked by the firm, estimated by plaintiff's inspector, $5 per thousand feet paid on the estimate, and each pile marked "F. E. C. L. Co." The amount advanced by plaintiff to the firm on this estimate was, as shown by a statement of account approved...