Finck v. Schneider Granite Company

• Citation: 86 S.W. 213,187 Mo. 244
• Parties: FINCK et al., Trustees, Appellants, v. SCHNEIDER GRANITE COMPANY
• Decision Date: 15 March 1905
• Court: Missouri Supreme Court

86 S.W. 213

187 Mo. 244

FINCK et al., Trustees, Appellants, v. SCHNEIDER GRANITE COMPANY

Supreme Court of Missouri, First Division

March 15, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.

Affirmed.

George W. Lubke for appellants.

(1) The demand of the St. Louis Crushed Granite Company against the Schneider Granite Company for breach of contract was an asset of the St. Louis Crushed Granite Company which passed to its directors as trustees when the charter of the company expired; and John C. Finck, Jr., Philip F. Stifel and Gottlieb Eyermann, Jr., being at that time the directors of that company, they became entitled to this demand and were properly substituted as plaintiffs in this case regardless of the time when this suit was begun. R.S. 1899, secs. 976 2513; Ward v. Pine, 50 Mo. 38; Raines v Lumpe, 80 Mo.App. 203; Williams v. Railroad, 153 Mo. 487. (2) The charter granted to the St. Louis Crushed Granite Company by the State authorized the company to buy and sell crushed granite "and generally to transact such business as is incident thereto including the right to contract for the purchase and sale of said articles and handling the same on commission." The statute then and now still in force authorized the formation of corporations for manufacturing and business purposes "intended for pecuniary profit or gain not otherwise especially provided for and not inconsistent with the Constitution and laws of this State." R.S. 1899, sec. 1319. And the referee and court below both erred in ruling that the St. Louis Crushed Granite Company had not a legal existence or legal capacity to enter into the contract with the Schneider Granite Company whereby the latter agreed for five years thereafter to sell and deliver to the former all the crushed granite output of the Schneider Granite Company; and in upholding defendant's plea that the purposes of the St. Louis Crushed Granite Company were unlawful, and erred in holding that the contract was illegal. (a) Questions as to the validity of a charter can only be raised by the State in direct quo warranto proceedings. This has been the rule in Missouri since the decision of the Federal Supreme Court which overruled Mathews v. Skinker, 62 Mo. 329. Bank v. Mathews, 98 U.S. 621; Thornton v. Bank, 71 Mo. 221; Bank v. Gillilan, 72 Mo. 77; Bank v. Hunt, 76 Mo. 439; St. Louis Drug Co. v. Robinson, 81 Mo. 26; Bank v. Porter, 52 Mo.App. 244. And the defendant company having received the benefits of the contract for seven months was thereby estopped from questioning the corporate existence or the legal capacity of the St. Louis Crushed Granite Company to make the contract, or the validity of the contract itself. Weyrich v. Grand Lodge, 47 Mo.App. 391; Kitchen v. Railroad, 69 Mo. 226; Schilling v. Schneider, 110 Mo. 83; Feld v. Inv. Co., 123 Mo. 603. (b) The first statute of Missouri relating to pools, trusts and conspiracies was approved May 18, 1889, to go into effect at once. Laws 1889, pp. 96-98, R.S. 1889, chapter 128. It was so faulty that the first attempt to enforce it by quo warranto proceedings failed. State ex rel. v. Simmons Hardware Co., 109 Mo. 118. And it was repealed without any reservations by the act of April 2, 1891, relating to pools and trusts. The later act had no emergency clause and did not, therefore, go into effect until June 22, 1891. Laws 1891, p. 226. It had and could have no retroactive effect; and did not and could not relate back to or affect the validity of the contract of March 5, 1891, between the St. Louis Crushed Granite Company and defendant Schneider Granite Company, or the other four contracts of the Crushed Granite Company with different plants. The Constitution of the State forbade the passage by the General Assembly of any law "impairing the obligation of contracts or retrospective in its operation." Sec. 15, art. 2, Bill of Rights. This rule was applied in Missouri in a case where a special statute authorized a plea of forfeiture of the charter of plaintiff. A later statute repealed this special one and the court held that the repeal did not destroy any vested right, and that after the repeal the forfeiture could be taken advantage of only by a direct proceeding. Bank v. Snelling, 35 Mo. 190. And in a later case it was held that where a witness had become disqualified from testifying because of his conviction of crime, his competency to testify was restored by the repeal of the law under which he was convicted. State v. Grant, 79 Mo. 113. The repeal of a statute without any saving clause leaves the law in force as it was before the enactment of the repealed statute, and although suit is pending the repeal controls it. Endlich on Interpretation of Statutes, sec. 479; Yeaton v. United States, 9 U.S. 281; Maryland v. Railroad, 44 U.S. 534; Norris v. Crocker, 54 U.S. 429; Pope v. Lewis, 4 Ala. 487; Lewis v. Foster, 1 N.H. 61. A contention that the contract here sued on was destroyed by the law of 1891 as a police regulation is also not tenable in this State. A direct parallel to the case at bar is the Missouri Lotteries case. State v. Miller, 50 Mo. 129; Leete v. State Bank, 115 Mo. 184, 141 Mo. 574; Clay v. Mayr, 144 Mo. 376; State ex rel. v. Greer, 78 Mo. 188. (c) The contract sued on, together with those made with the four other parties, could not and can not be held invalid at common law on the ground of monopoly, or as being in restraint of trade or for any other reason in the absence of an express statute invalidating them. Presbury v. Fisher, 18 Mo. 50; Peltz v. Eichele, 62 Mo. 171; Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Gill v. Ferris, 82 Mo. 156; State ex rel. v. Asso. Press, 159 Mo. 410; Skrainka v. Scharringhausen, 8 Mo.App. 522; Clark v. Frank, 17 Mo.App. 602; Natl. Lead Co. v. Grote Paint Co., 80 Mo.App. 247; Stearns v. Barrett, 1 Pick. 443; Palmer v. Stebbins, 3 Pick. 188; Pierce v. Woodward, 6 Pick. 206; Alger v. Thatcher, 19 Pick. 53; Nobles v. Bates, 7 Cow. 307; Beard v. Dennis, 6 Ind. 200; Wintz v. Vogt, 3 La. Ann. 16; Oakdale Mfg. Co. v. Garst, 18 R.I. 484; Cohen v. Env. Co., 56 N.Y.S. 588; Leslie v. Lorillard, 110 N.Y. 519.

Dickson, Smith & Dickson for respondent.

(1) The combination created by the contract involved in this case is against the antitrust laws of Missouri. State ex rel. v Armour Packing Co., 173 Mo. 356; National Lead Co. v. Grote Paint Store Co., 80 Mo.App. 247; Walsh v. Association of Master Plumbers, 97 Mo.App. 280; State v. Fireman's Ins. Co. 152 Mo. 1; Heim Brewing Co. v. Berlinder, 97 Mo.App. 64; Ford v. Chicago Milk Shippers' Assn., 155 Ill. 166; Anheuser-Busch Brewing Co. v. Houck, 30 S.W. 869; Coal Co. v. Lanson, 34 S.W. 920; Beechley v. Mullville, 70 N.W. 107; B.R. Co. v. Templeman, 38 S.W. 27; Fuqua v. Pabst Brewing Co. 38 S.W. 29; Texas B. Co. v. Meyer, 38 S.W. 263; Merz Capsule Co. v. U.S.C. Co., 67 F. 414; U.S. v. Freight Association, 166 U.S. 290; Ertz v. Produce Exchange, 84 N.W. 743; In the matter of Davies, 168 N.Y. 191; Cleland v. Anderson, 92 N.W. 306; Commonwealth v. Bavarian B. Co., 66 S.W. 1016; Canning Co. v. Joulian, 80 Miss. 555; article "Regulation of Trusts," 51 C.J.L. 45. (2) The combination created by the contract, which is the subjectmatter of this action, is violative of the Federal Antitrust Act of July 2, 1890. U.S. v. Addyston Pipe & Steel Co., 29 Cir. Ct. App. 141, affirmed in U.S. v. Addyston Pipe & Steel Co., 175 U.S. 211; U.S. v. Freight Assn., 166 U.S. 290; Gibbs v. McNeeley, 55 C.C.A. 70; Montague v. Lowry, 52 C.C.A. 621; U.S. ex rel. v. C. & O. Fuel Co., 105 F. 93, affirmed 115 F. 610; U.S. v. Swift, 122 F. 529; U.S. v. Northern Securities Co., 120 F. 721. (3) The combination created by the contract in this case is void under the common law, with respect to monopolies and contracts in restraint of trade. Distilling & Cattle Feeding Case, 41 N.E. 188; Foss v. Cummings, 36 N.E. 555; More v. Bennett, 29 N.E. 888; Griffin v. Piper, 55 Ill. 213; Am. Straw Board Co. v. Peoria Straw Board Co., 65 Ill.App. 502; Craft v. McConoughy, 79 Ill. 346; Distilling Co. v. People, 156 Ill. 448; Harding v. American Glucose Co., 182 Ill. 551; Ford v. Chicago Milk Shippers' Assn., 155 Ill. 166; Nester v. Brewing Co., 161 Pa. St. 473; Morris Run Coal Co. v. Coal Co., 68 Pa. St. 173; Richardson v. Buhl, 43 N.W. 1110; Bingham v. Brand, 77 N.W. 940; Western Woodenware Ass'n v. Starkey, 84 Mich. 76; Consumers Oil Co. v. Hennemacher, 142 Ind. 564; Anderson v. Jett, 12 S.W. 670; Emery v. Ohio Candle Co., 24 N.E. 660; State v. Standard Oil Co., 30 N.E. 279; Central Salt Co. v. Guthrie, 35 Ohio St. 666; Chapin v. Brown, 48 N.W. 1074; Mill Co. v. Haynes, 76 Cal. 387; Vulcan Powder Co. v. Powder Co., 96 Cal. 510; Pacific Co. v. Adler, 27 P. 36; Bailey v. Assn. of Master Plumbers, 52 S.W. 845; Texas S.C. Co. v. Adoue, 19 S.W. 274; India Bagging Co. Assn. v. Cock, 14 La. Ann. 168; Arnett v. Pittson Co. 68 N.Y. 565; People v. Milk Exchange, 145 N.Y. 267; Drake v. Siebold, 81 Hun 178; DeWitt Wire Cloth Co. v. N.J. Wire Co., 14 N.Y.S. 277; Judd v. Harrington, 19 N.Y.S. 406; People v. Duke, 44 N.Y.S. 336; Cumming v. Union Blue Stone Co., 44 N.Y.S. 787; P.C. Co. v. McMillan, 119 N.Y. 46; Irmston v. Whitlegg Bros., 63 Law Times 455; Tiedeman on Commercial Paper, sec. 190; U.S. v. Knight, 156 U.S. 116; Fox Solid Steel Co. v. Schoen, 77 F. 29; National Herald Co. v. Hench, 76 F. 667; National Herald Co. v. Quake, 67 F. 130. (4) The original anti-trust act of Missouri in its substantial features was in force when the contract involved in this case was entered into, but whether it was in force or not is immaterial for the reason that when the act of 1891 came into effect it applied to all contracts violative of its terms, entered into before the passage of the act, as well as those that might be entered into...