Metal Door & Trim Co. v. Hunt

• Decision Date: 30 October 1934
• Docket Number: 23651.
• Citation: 39 P.2d 72,170 Okla. 240,101 A.L.R. 350,1934 OK 602
• Parties: METAL DOOR & TRIM CO. v. HUNT et al.
• Court: Oklahoma Supreme Court

39 P.2d 72

170 Okla. 240, 101 A.L.R. 350, 1934 OK 602

METAL DOOR & TRIM CO. v. HUNT et al.

No. 23651.

Supreme Court of Oklahoma

October 30, 1934

Rehearing Denied Jan. 8, 1935.

Syllabus by the Court.

1. A motion by defendant to dismiss plaintiff's cause of action on the ground that the pleadings disclose the plaintiff was not authorized to maintain the suit because of noncompliance with Oklahoma statutes imposing certain duties upon foreign corporations as a condition precedent to their transaction of business within the state will be given the effect of a motion for judgment on the pleadings in the Supreme Court where such effect was given to said motion by the trial court. Such a motion is not favored by the courts it admits the truth of the allegations of the opposing party must be liberally construed in favor of the pleader, and should be sustained only where no cause of action is stated and the plaintiff's petition is not susceptible of amendment.

2. The protection of the commerce clause of the Federal Constitution extends beyond the strict lines of contract, and inseparable incidents of a transaction of interstate commerce based on contract are also interstate commerce.

3. The mere installation of machinery or other apparatus, including the assembly of its completed and adjusted parts, and its erection in its place for use, is but an incident of the sale, and is not, in that connection, an act of local business, if the sale and delivery is itself an act of interstate commerce.

4. The phrase "transacting business," as used in section 130, O. S. 1931, means the doing or performing a series of acts which occupy the time, attention, and labor of men for the purpose of livelihood, profit, or pleasure.

5. A single or isolated transaction of a corporation, whether local or not, will not be void under section 130, O. S. 1931 because of the failure of the corporation to comply with the provisions of said section.

Appeal from District Court, Tulsa County; Owen Owen, Judge.

Action by the Metal Door & Trim Company against Dan Hunt, Sr., and others. From judgment for defendants, plaintiff appeals.

Judgment reversed, and cause remanded, with directions.

Font L. Allen, of Tulsa, for plaintiff in error.

Poe, Lundy & Morgan, H. R. Duncan, and L. M. Poe, Jr., all of Tulsa, for defendants in error.

PER CURIAM.

For convenience, the parties hereto will be designated plaintiff and defendant as they appeared in the trial court.

Plaintiff an Indiana corporation, made a contract with the defendant Dan Hunt, Sr., whereby it agreed for a consideration of $14,000 to manufacture, deliver, and erect in place certain elevator and other equipment, including doors, in what is known as the Hunt building in Tulsa, Okl. Defendant paid $6,000 of the agreed consideration, and, having refused to pay more, plaintiff brought this suit to recover the balance of $8,000 alleged to be due it and to foreclose a lien upon the building. Others having filed liens against the building were also made defendants.

The defendant Hunt by answer alleged that under the provisions of section 132, O. S. 1931, the contract was void and unenforceable, for the reason that the plaintiff was a foreign corporation and was not authorized to do business within the state of Oklahoma because of its noncompliance with section 130, O. S. 1931, requiring every foreign corporation, as a condition precedent to transacting business in Oklahoma, to perform certain duties, including the appointment of a resident agent of the state upon whom service of process may be made in any action in which said corporation shall be a party.

Other defenses pleaded by the defendant, in the nature of counterclaim and set-off, need not be further mentioned because of matters presently to be stated. Plaintiff by way of reply, while admitting that it had not complied with the provisions of section 130, supra, pleaded that it had not engaged in doing business in the state of Oklahoma within the purview of the provisions of the Oklahoma statutes, and that it was not prohibited by any law from maintaining the action.

When the case was called for trial, counsel for defendant orally moved the court to dismiss the plaintiff's cause of action on the ground that the pleadings disclosed that the plaintiff was a foreign corporation not authorized to do business in the state of Oklahoma, and that said pleadings also showed on their face that the matters sued upon are for doing business within the state of Oklahoma, and that therefore the contract was unenforceable.

After argument, the trial court stated: "The court finds that the contract in this case is entire and that the pleadings clearly show that the plaintiff is a foreign corporation and not authorized to do business in this state, and that the transaction as set out by the pleadings is an intrastate transaction. There is no question which may properly be submitted to the jury, and therefore the cause is dismissed."

From this ruling it appears that the trial judge treated the oral motion to dismiss as a motion for judgment on the pleadings, and we will so treat it here. Such a motion is not favored by the courts, and should be sustained only where no cause of action or defense is stated and the pleading is not susceptible of amendment. It is in the nature of a demurrer, and admits the truth of the allegations of the opposing party, and must be liberally construed in favor of the pleader. It should be sustained only where the petition is so defective that the court is authorized, taking all the facts to be admitted, in concluding that no cause of action is stated entitling the plaintiff to relief. Good et al. v. First National Bank of Roff et al., 88 Okl. 110, 211 P. 1051.

Did the court err in sustaining the motion?

Counsel for defendant pleaded and urge here that the contract is indivisible and that the transaction as disclosed by the pleadings and exhibits was an intrastate transaction as distinguished from an interstate transaction. In their argument, they emphasize language of the contract specifying that the seller was "to manufacture, deliver and erect in place elevator enclosures, hollow metal material and tinclad units as called for in addenda to architect's specifications" and also parts of the plaintiff's amended petition, wherein it alleged that it was to perform certain labor within Oklahoma in fulfilling the contract. Counsel discuss and rely upon the cases of Browning v. Waycross, 233 U.S. 16, 34 S.Ct. 578, 58 L.Ed. 828; General Railway Signal Co. v. Virginia, 246 U.S. 500, 38 S.Ct. 360, 62 L.Ed. 854; Western Gas Construction Co. v. Commonwealth of Virginia, 147 Va. 235, 136 S.E. 646, 55 A. L. R. 717, together with other state and federal cases assumed to be in point.

Counsel for plaintiff contends that the transaction contemplated by the contract between it and the defendant, and upon which the suit is based, was an interstate transaction, and also that it was a single act pertaining to a particular business or transaction which it had a right to do without complying with the provisions of section 130, O. S. 1931. He discusses and relies principally upon the cases of Fuller v. Allen et al., 46 Okl. 417, 148 P. 1008, 1010; Chicago Crayon Co. v. Rogers et al., 30 Okl. 299, 119 P. 630, 635; York Mfg. Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 432, 62 L.Ed. 963, 11 A. L. R. 611, as well as upon other cases from state and federal courts.

Section 134, O. S. 1931 specifically provides that the article (of which section 130 is a part) "shall not be effective in cases where its enforcement would conflict with the powers of Congress or the federal laws to regulate commerce between the states." Moreover, it is well settled by decisions of the Supreme Court of the United States and also by numerous decisions of this court that a state cannot prevent a corporation by license, taxation, or otherwise from making contracts within the state with reference to or in furtherance of interstate commerce. York Mfg. Co. v. Colley, supra; Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649; Chicago Crayon Co. v. Rogers et al., 30 Okl. 299, 119 P. 630.

We cannot agree with counsel...