Mergenthaler Linotype Co. v. Hays

• Decision Date: 27 June 1914
• Parties: MERGENTHALER LINOTYPE COMPANY, Appellant, v. W. B. HAYS and SAMUEL W. DAVIS, Respondents
• Court: Missouri Court of Appeals

168 S.W. 239

182 Mo.App. 113

MERGENTHALER LINOTYPE COMPANY, Appellant, v. W. B. HAYS and SAMUEL W. DAVIS, Respondents

Court of Appeals of Missouri, Springfield

June 27, 1914

[Copyrighted Material Omitted]

Appealed from Butler Circuit Court.--Hon. J. P. Foard, Judge.

REVERSED AND REMANDED.

STATEMENT.--The plaintiff is a New York corporation and at the time of making the contract and lease--the basis of this suit--had not complied with sections 3037 to 3041 inclusive, R. S. 1909 providing for foreign corporations doing business in Missouri and prescribing penalties. The penalty particularly involved in this case is that denying a foreign corporation, doing business in this State without having complied with these sections of the law, the right to maintain an action in our courts arising out of contract or tort.

The plaintiff alleged that it is engaged in the manufacture, sale and distribution of linotype machines; that there is due it $ 1,265, representing two annual rental charges of $ 632.50 each, payable in advance on the fourteenth day of June for the years 1911 and 1912; that the defendants are the owners and proprietors of the Citizen-Democrat, a publishing company in Poplar Bluff, Mo.; that the lease was for a term of six years commencing in June, 1910; that the first year's rent, beginning June 14, 1910, had been paid, and that after demand for the payment of the rent for the two years named it was refused. Plaintiff further alleged that pursuant to the contract it shipped the machine to Poplar Bluff and set it, up in perfect working order, and that plaintiff fully performed its contract.

The defendant Hays answered by a general denial, and the following plea:

"Further answering, this defendant states that the plaintiff, the Mergenthaler Linotype Company, at the time of the execution of the contract and lease set out in plaintiff's petition, was and is still a foreign corporation, incorporated, organized and existing under the laws of the State of New York; and that said corporation is a corporation organized for pecuniary profit, and as such has not complied with the laws of the State of Missouri relating to foreign corporations, in this: That said Mergenthaler Linotype Company of New York had not at the time of the making of this contract and at the time of bringing this suit, filed with the secretary of State of the State of Missouri, a copy of its articles of association and charter granted by the State of New York, and had not then procured from the Secretary of State a license to do business in the State of Missouri.

"Defendant further states that the Mergenthaler Linotype Company of New York, not having complied with the laws of this State regulating foreign corporations as aforesaid, and not having received a certificate for a license from the Secretary of State authorizing it to do business in this State as aforesaid, it was and is unlawful for said corporation to transact business in this State without a compliance with the statute in such cases made and provided, and that the contract and lease referred to in plaintiff's petition is unlawful and void, and plaintiff cannot maintain this suit."

The plaintiff replied as follows:

"Plaintiff admits that it was at the time of the execution of the contract and lease set out and referred to in plaintiff's petition and now is a foreign corporation organized and existing under the laws of the State of New York, and that it was organized for pecuniary benefit.

"Plaintiff denies that at the date of said contract and lease it had not complied with the laws of the State of Missouri relating to foreign corporations.

"Plaintiff admits that at the time of the making of the contract and lease set out in its petition it had not filed with the Secretary of State of Missouri a copy of its articles of association and charter granted by the State of New York. Also admits that at the time of the making of the contract and lease referred to it had not filed with the Secretary of State of the State of Missouri a copy of its articles of association and charter granted by the State of New York. Also admits that at that time it had not procured from the Secretary of State a license to do business in the State of Missouri. Further replying to said amended answer this plaintiff states: That at the time of the execution of the contract and lease referred to in its petition it was not doing business in the State of Missouri, nor did it keep an office in said State for the purpose of transacting its business authorized to be transacted by its charter and articles of incorporation. That at the time of the making of said contract and lease plaintiff had a salesman traveling in Missouri soliciting persons to buy the linotype machine mentioned in plaintiff's petition. That the said traveling salesman employed by plaintiff at that time made the contract and lease referred to in plaintiff's petition with these answering defendants, W. B. Hays and S.W. Davis, subject to the approval and ratification of plaintiff at its office in New York. That said contract and lease referred to was agreed to, approved and executed by plaintiff at its office in New York on the date it bears; that plaintiff's salesman in Missouri presented its contract and lease to these answering defendants who executed the same and that said linotype machine was delivered to these answering defendants W. B. Hays and S.W. Davis. Plaintiff alleges it did not open an office in Missouri, for the transaction of business until the first of January, 1913."

Thereafter, a motion for judgment on the pleadings was filed, alleging the following grounds:

"First: Because it appears from the allegations in plaintiff's replication filed herein that the plaintiff is not entitled to recover in this case.

"Second: Because, upon the pleadings filed in this case, judgment should properly be awarded the defendant, W. B. Hays, herein."

This motion was sustained and judgment entered, from which judgment this appeal is prosecuted.

Both parties rely upon so many of the contract provisions as sustaining their respective positions that we find it necessary to burden this statement with a copy of the contract. It follows:

"This agreement, made and entered into this twelfth day of May 1910, by and between Mergenthaler Linotype Company, a body corporate, organized and existing under the laws of the State of New York, hereinafter designated the lessor, of the first part, and William B. Hays and Samuel W. Davis, co-partners, of Poplar Bluff, Missouri, proprietors of the Citizen-Democrat, hereinafter designated the lessees, of the second part:

"Witnesseth, That for and in consideration of the mutual covenants, obligations and considerations hereinafter mentioned, the respective parties hereto have agreed and do hereby agree together as follows:

"First:--The lessor agrees to deliver to the lessees on the terms and conditions hereinafter named: One (1) Two-letter Linotype Machine, Model 5 No. 14,088, and One Two-letter Duplex Equipment.

"Second:--The lessor agrees that said machine shall be in operative condition and capable of setting, when operated by an expert, at least 5,000 ems nonpareil per hour.

"Third:--The lessor agrees that after the receipt of the first year's rental, as hereinafter provided, delivery of said machine, its belongings and accessories, shall be made to the lessees f. o. b. City of New York.

"Fourth:--The lessor agrees that it will, if so requested, furnish at the expense of said lessees, a competent machinist to erect said machine at the place of business of the lessees, and a skilled operator to instruct the employees of the lessees in the use of the machine.

"Fifth:--The lessees agree to accept said machine, its belongings and accessories, at the factory of the lessor, Borough of Brooklyn, City of New York, and cause them to be at once transported to and erected in a safe and suitable location in their place of business, No. 220 South Fourth Street, Poplar Bluff, Missouri, and to pay the wages and expenses of machinists and operators, including the time and amounts necessarily spent by them in traveling, and all freights upon the machine, its belongings and accessories, from the City of New York, to Poplar Bluff, Missouri, and to pay the lessor for said machine, its belongings and accessories, yearly and in advance, during the whole of the term herein provided for, the annual rental of Six hundred thirty-two and 50/100 dollars ($ 632.50) (New York exchange); said rental for the first year to be due and payable as soon as the said machine is ready for delivery and before delivery of same is made. The period, however, to which the first year's rental shall apply shall commence thirty days after the date at which said machine is ready for delivery; the object of said allowance of thirty days without rental being to give the lessees time in which to transport the said machine to, and to erect it in, their place of business aforesaid and to become familiar with its use.

"Sixth:--The lessees agree that should a promissory note or notes be at any time accepted by the lessor instead of cash or New York exchange for said rental or any part thereof, only payment of said note or notes shall be payment of said rental, and upon default in the payment of any of said notes, or upon the failure of the lessees to perform any other of the covenants conditions or obligations of this agreement, or if the lessees shall become bankrupt or insolvent, or shall part with the machine without the consent of the lessor, either by their own act or by operation of law, the lessor may at its option terminate this agreement by notice in writing and take possession of and remove said machine, its belongings and accessories, and...