Kayser Roth Co. v. Holmes, WD

Decision Date02 July 1985
Docket NumberNo. WD,WD
Citation693 S.W.2d 907
PartiesKAYSER ROTH COMPANY, Appellant, v. E. Michael HOLMES, d/b/a Soricelli Men's Wear, Respondent. 36213.
CourtMissouri Court of Appeals

Ronald S. Weiss, John W. Zimmerman, Kansas City, for appellant.

R. Britt Carlson, Kansas City, for respondent.

Before BERREY, P.J., and DIXON and KENNEDY, JJ.


Plaintiff Kayser Roth Corporation is and was at all relevant times a corporation of some state other than Missouri, engaged in the business of clothing manufacture. It had not obtained a certificate of authority to transact business in Missouri pursuant to the requirements of § 351.570.1, RSMo 1978. It brought suit against defendant Don A. Melching upon Melching's personal guaranty of payment for clothing furnished by Kayser Roth to one E. Michael Holmes, d/b/a Soricelli Men's Wear. The amount of the account was $22,248.

At the conclusion of the plaintiff's evidence, the trial court directed a verdict in favor of defendant Don Melching and against Kayser Roth on the basis of plaintiff's failure to have obtained the above-mentioned certificate of authority. Section 351.635, RSMo 1978, provides that failure to comply with the provisions of Subsection 1 of Section 351.570 disqualifies a foreign corporation from maintaining any action in any of the courts of this state. Kayser Roth appeals from the ensuing judgment. Judgment reversed.

We hold that Kayser Roth was not required to have a certificate of authority under § 351.570 on account of the following provision of that statute:

2. Without excluding other activities which may not constitute transacting business in this state, a foreign corporation shall not be considered to be transacting business in this state, for the purposes of this chapter, by reason of carrying on in this state any one or more of the following activities: (9).... Transacting any business in interstate commerce. (Emphasis supplied.)

Kayser Roth's business out of which this action grew was clearly business transacted in interstate commerce and it was not disqualified from bringing an action in the Circuit Court of Jackson County to collect the amount alleged to be owing to it by defendant Melching.

The facts of the case are as follows:

Kayser Roth manufactures clothing. It is composed of a number of divisions, including Champion Slacks, Mavest Sport Coats and Lewis Goldsmith Suits. These divisions are located in Pennsylvania and are represented in Missouri by manufacturer's representatives who solicit orders for each of the divisions' product lines. Among their Missouri customers was a men's clothing store owned and operated by defendant Michael Holmes under the name of Soricelli Men's Wear (Soricelli). Soricelli continued to buy merchandise from Kayser Roth from the time of its opening in late 1974 until its closing in 1978. At the time of its closing Soricelli owed Lewis Goldsmith $19,019.90, Mavest $2,000, and Champion Slacks $1,228.10.

Before the opening of Soricelli in 1974, Kayser Roth had required as a condition to extending credit that Holmes furnish a guarantor of his account. Both Holmes and Melching executed personal guarantees for each of the three divisions, on forms furnished by the Kayser Roth credit manager, and returned them to the various Kayser Roth divisions along with their respective financial statements.

The suit against defendant Melching is upon this guarantee of the Soricelli accounts with Champion Slacks, Mavest Sport Coats and Lewis Goldsmith Suits.

The operation of Kayser Roth through its three divisions is thus described in the appellant's statement of facts, which we find to be an accurate recital of the evidence contained in the transcript:

Kayser Roth is not authorized to do business in the State of Missouri, has no office, warehouse or distribution center in Missouri, and has no employees in Missouri. Kayser Roth pays a commission to manufacturer's representatives who work in Missouri and solicit orders for the Kayser Roth product lines. The representatives also carry clothing lines of other companies.

Two representatives are identified with the transactions in the instant case--Bill Pollard represents Mavest and Champion and works out of his home in Kansas City, Missouri, and the other, who was unnamed in the testimony at trial, represents Lewis Goldsmith and lives outside of Missouri.

Each of the representatives has solicited clothing orders for Kayser Roth for a number of years in the State of Missouri. Holmes testified that the representatives' work was concentrated in the greater Kansas City area.

The representatives carry order forms, price books and swatches of material which bear the name of the respective divisions of Kayser Roth. When an order is placed, it is submitted to the customer service department of the respective division by the...

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5 cases
  • Berkel & Co. Contractors, Inc. v. JEM Development Corp., 15195
    • United States
    • Missouri Court of Appeals
    • November 10, 1987
    ...that a general denial of allegations of corporate capacity to sue is insufficient to raise the issue in the case. Kayser Roth Co. v. Holmes, 693 S.W.2d 907, 909 (Mo.App.1985). The cases are unclear as to what is meant by a "mere In a more recent case involving Rule 55.13, a defendant's answ......
  • Ozark Employment Specialists v. Beeman
    • United States
    • Missouri Court of Appeals
    • July 30, 2002
    ...barred from maintaining a suit in Missouri courts. In Campaign Works, this court distinguished the case from Kayser Roth Co. v. Holmes, 693 S.W.2d 907 (Mo.App.1985) and Superior Concrete Accessories v. Kemper, 284 S.W.2d 482 In Kayser Roth, 693 S.W.2d 907, the plaintiff was a manufacturer o......
  • KMS, Inc. v. Wilson
    • United States
    • Missouri Court of Appeals
    • July 13, 1993
    ...to require a defendant that wishes to challenge plaintiff's corporate existence to plead more than a mere denial. Kayser Roth Co. v. Holmes, 693 S.W.2d 907, 909 (Mo.App.1985) . An allegation that the pleader lacks knowledge, information, or belief to either admit or deny plaintiff's corpora......
  • Pemiscot County Memorial Hosp. v. Bell, 15753
    • United States
    • Missouri Court of Appeals
    • May 18, 1989
    ...a mere denial of corporate existence is insufficient to raise the issue under the rules of civil procedure. Kayser Roth Co. v. Holmes, 693 S.W.2d 907, 909 (Mo.App.1985). Because no provision of Chapter 517 excuses defendant's compliance with the "specific negative averment" requirement of R......
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