Fay Fruit Co. v. McKinney Bros. & Co.

• Decision Date: 09 November 1903
• Citation: 77 S.W. 160,103 Mo.App. 304
• Parties: FAY FRUIT COMPANY, Respondent, v. McKINNEY BROS. & COMPANY, Appellants
• Court: Kansas Court of Appeals

77 S.W. 160

103 Mo.App. 304

FAY FRUIT COMPANY, Respondent, v. McKINNEY BROS. & COMPANY, Appellants

Court of Appeals of Missouri, Kansas City

November 9, 1903

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

REVERSED.

Judgment reversed.

Hardin & Taylor for appellant.

The trial court erred in rendering judgment for plaintiff in this cause. The evidence presented at the trial brings this case clearly within the mandatory and prohibitive terms of sections 1025 and 1026 of the Revised Statutes, 1899, and the rule so clearly enunciated by this court in its construction of said sections. Williams v. Scullin, 59 Mo.App 30; Ehrhardt v. Robertson Bros., 78 Mo.App. 404.

Wollman Solomon & Cooper for respondent.

(1) The appellant only cites two cases in his brief, Ehrhardt v Robertson Bros., 78 Mo.App. 404 and Williams v. Scullin, 59 Mo.App. 30. It is very evident that the cases are not in point. (2) Respondent is not a resident foreign corporation, and therefore need not comply with the laws of the State of Missouri in regard to foreign corporations. Steam Heating Co. v. Gas Fixture Co., 60 Mo.App. 148; Maxwell & Co. v. Edens, 65 Mo.App. 439; Blevins v. Fairley, 71 Mo.App. 259; Woolen Mills v. Edwards, 84 Mo.App. 448.

OPINION

ELLISON, J.

The plaintiff is a corporation organized under the laws of California and deals in fruits grown in that State. It sold to defendant 362 boxes of oranges and the latter refusing to pay the price, for reasons not necessary to state, it instituted this action on the account and recovered judgment in the trial court.

The ground relied upon in the trial to defeat the action was that plaintiff being a foreign corporation was doing business in this State without first obtaining a certificate from the Secretary of State authorizing it to do business in this State as is provided by our statute. The statute (Sections 1025 and 1026, Revised Statutes 1899) requires that such corporation shall file with the Secretary of State a copy of its charter with certain other statements, and that the Secretary of State shall issue a certificate authorizing it to do business. The statute further imposes a penalty for failure to comply with its provisions, and enacts that a corporation violating its terms should not be permitted to maintain an action on any demand it might have against one with whom it may have dealt. The statute however contains a proviso that its provisions "shall not apply to drummers or travelling salesmen soliciting business in this State for foreign corporations which are entirely non-resident." The evident object of the statute was to require those non-resident corporations which located themselves in this state for the transaction of business to place themselves under our laws and assume the burdens of taxation as required of resident corporations.

The plaintiff claims that it was not evading this statute in conducting its business in this State and that its mode of doing business as exemplified in this instance was protected by the proviso just quoted, wherein foreign corporations are permitted to solicit business through drummers, or travelling salesmen. Undoubtedly foreign corporations may advertise their goods in this State and may send travelling salesmen into this State to solicit purchases from them in their foreign location wherever that may be. But (without first complying with the statute) they can not establish an agent here for the sale of their goods in this State which have been shipped to such agent or to themselves to be received by him, for the purpose of selling to whomsoever he may find who will buy of him. If that could be done it would work an easy destruction of the law.

In this case it was shown that plaintiff had a general agent at Kansas City, Mo. At one part of his testimony he called himself a general agent, and at another part a general salesman, but, under either designation, the same result follows on the facts shown. He kept an office in such city the rent of which was paid for by plaintiff, and he had charge of its business in a certain district of country, including the city of St. Joseph. He testified that it was common for plaintiff to ship fruit from California to some point in another State, not to some customer who...