National Refrigerator Co. v. Southwest Missouri Light Co.

• Decision Date: 06 June 1921
• Docket Number: No. 21817.,21817.
• Citation: 288 Mo. 290,231 S.W. 930
• Parties: NATIONAL REFRIGERATOR CO. v. SOUTHWEST MISSOURI CO.
• Court: Missouri Supreme Court

231 S.W. 930

288 Mo. 290

NATIONAL REFRIGERATOR CO. v. SOUTHWEST MISSOURI CO.

No. 21817.

Supreme Court of Missouri, Division No. 1.

Motion for Rehearing April 9, 1921.

Denied June 6, 1921.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by the National Refrigerator Company against the Southwest Missouri Light Company. From judgment for defendant, plaintiff appeals. Affirmed.

This case was brought by the plaintiff, in the circuit court of Jasper county, against the defendant, to recover the sum of $12,890.41, balance alleged to be due it under a written contract to furnish the material and install at Joplin, Mo., a certain ice plant described in the petition.

Judgment was for the defendant, and plaintiff appealed the cause to this court. The contract (omitting formal parts) is as follows:

We propose to furnish and erect at Joplin, Missouri, in complete running order and condition, and of the best material and workmanship, one ice-making plant of 25 tons capacity daily, as per specifications to be submitted, for the sum of twenty-two thousand four hundred and thirty-six ($22,436) dollars, payments to be made as follows:

Six thousand ($6,000) dollars on arrival of machines in Joplin, Missouri.

Six thousand four hundred and thirty-six ($6,436) dollars when machines are installed and ready to start, less freight charges and erecting expenses advanced by you.

Ten thousand ($10,000) dollars or balance in two notes of $5,000 each payable in one and two years with interest at the rate of 6 per cent. per annum. These notes to be executed by light company or their successors, or both, and in the event of the organization of a stock or incorporated company for the purpose of acquiring ownership in the said machines and apparatus, then the notes to be executed by the company, and secured by the entire issue of its capital stock.

The notes mentioned in the contract were never executed; hence the suit was for the balance due under the contract.

The sufficiency of the pleadings are not questioned, so we will put them aside, except to say that the answer, among other things, charges that the plaintiff was a foreign corporation organized and doing business under the laws of Colorado and had never taken out a license to do business in this state as required by the statutes hereof. The reply, among other things, stated that the contract matter involved interstate commerce, and was therefore not governed by the laws of this state.

When the cause was called for trial the following stipulation was entered in by and between counsel for the respective parties (formal parts omitted):

Whereas, there are several issues involved in the trial of this cause, some of which will require the examination and determination of long and complicated accounts and transactions; and,

Whereas, one of the issues is presented by the second court of the last amended answer of the defendant and the denial thereof contained in the plaintiff's reply thereto, said issue being in substance the right of the plaintiff to have and maintain the suit and recover because of the alleged fact that it was and is a corporation under the laws of Colorado and had failed to comply with the laws of Missouri; said second count of the last amended answer and that portion of the reply referring thereto are hereby referred to and made a part hereof for a more definite statement of such issue; and,

Whereas, the determination of such issue may or may not make unnecessary the trial of the further issues in the case:

It is, therefore, agreed and stipulated that there shall first be tried to the court (a jury being waived thereon) the issue aforesaid, presented by the second count of defendant's last amended answer and that portion of reply relating thereto, that the parties shall from time to time during the present term of court submit their evidence on such issue unto the end that all the evidence must be submitted during said term of court and the matter finally submitted to the court for determination. That upon hearing and considering the matter aforesaid, the court shall determine and announce his finding on such issue. If such finding be for the defendant, thereupon final judgment shall be rendered in this cause in favor of the defendant and against the plaintiff, from which plaintiff may appeal. If such finding be for the plaintiff, the defendant shall thereupon file its counterclaim in the cause and the remaining issues, other than that above stipulated shall remain for trial and be heard and determined by the court, no judgment to be rendered until determination of all the issues by the court, whereupon the defendant appeals.

The following admission was also made at the trial in open court:

Mr. Spencer: It is admitted that on the date of the making of the contract sued on, to wit, January 7, 1902, the plaintiff was and has ever since been a corporation organized for business purposes under the laws of the state of Colorado, and that said plaintiff has never complied with the laws of this state, Missouri, and obtained a license authorizing it to transact business within this state and that it never had or maintained a public office or place in this state for the transaction of business where legal service might be obtained upon it and where the books were kept required by the Missouri statute, and that the plaintiff never took any steps to procure a license or authority to transact business in this state.

Mr. Dewey: This further thought: Whether this business as a whole is a transaction which would be made void by the statutes of Missouri or whether it would come under the exceptions which are allowed by interstate commerce. In other words, the point we are working on today is whether this was a transaction or contract of interstate commerce.

In order to maintain the issues on its part plaintiff introduced the following evidence:

B. J. Ulrich, sworn as a witness on behalf of plaintiff, testified substantially as follows:

He first received a letter from the manager of the defendant by Mr. Geo. Myers, of Joplin, Mo., at Colorado Springs in September, 1901, regarding the installation of an ice plant. The letter was as follows (formal parts omitted):

"Mr. E. T. Skinkle, of Chicago, advises that you are going to be in Chicago some time next week. If it is possible for you to do so, please come via Kansas City, as I am very anxious to talk with you in regard to installation of one or two ice plants. In fact, I want to arrange my affairs so I can visit the ice plants which you now have in operation at an early date.

"Please advise me by early mail, if possible, when you will reach Kansas City, so I will be sure to be at home."

Later I met the gentleman in Chicago and entered into a contract to install an ice plant at their works near Joplin. This was in January, 1902. in pursuance of that contract we drew the plans, installed foundations for the machinery, and ordered the machinery and equipment for the plant. We put it in a building furnished us by the defendant which was already built and on the ground at Grand Falls, near Joplin, Mo. We bought a large part of the machinery from the York Manufacturing Company, some from a Chicago firm, some from the Liner Company, of Denver, and some we manufactured. We were interested in a factory in Chicago which made smaller plants, but this was too large for them to handle entirely; hence the purchases made from other sources. The machinery and parts were all shipped to our order at Grand Falls in Newton county, Mo., and installed under our supervision. We paid the freight on it all, and the defendant later refunded it to us. The business of the plaintiff is building ice and coldstorage plants and installing refrigerating machinery. What we mean by installation is this: We put in cement foundations for the machines which necessitated the hiring of carpenters, mixers, masons, the purchase of some rough lumber to make the forms, a certain amount of cement, and other matter, used in such construction. Into these foundations the templates were set with the proper bolts for attaching the machinery and making it solid. The machinery was then taken from the car, placed on the foundations previously prepared, put onto bolts in same, and made fast. These were the compressors. Then the tanks which came in sheets of steel were riveted together in one, two, or four battery arrangement as the case might be. Then the freezing coils and other coils are anchored, and lastly the cans were put in place. These cans, by the way, were bought by the York people from a can manufacturing company in the east. People specialize. Some make cans; some, ammonia compressors, etc. We purchased, in making up the parts of this plant, where we could get the best material. All of that material is assembled and put into working condition and connection is made with the power. In this case we had to connect up to the main line of shafting of the Southwest Missouri Light Company which had already been installed by them in this power plant. We bought very little stuff locally, as we had brought practically everything with us that would be necessary, except perhaps a bolt or nut, such which we happened to be short of. in doing all this you can see we would need some pipe fitters, some pipe men, trench diggers, a few machinists, and a carpenter here and there, all working under our skilled erecting engineers. There were some changes in plans and suggestions which took additional time in the installation and, moreover, the installation of an additional part of this plant by the Southwest Light Company, for which we, at their request, furnished the plans and advice—all gratuitously, however. We bought very little pipe for our installation work, though there was a good deal used by the Southwest Company. In the installation all the storage house just mentioned, it took very little cement for the foundations, as there were but...