National Refrigerator Company v. Southwest Missouri Light Company

• Citation: 231 S.W. 930,288 Mo. 290
• Parties: NATIONAL REFRIGERATOR COMPANY, Appellant, v. SOUTHWEST MISSOURI LIGHT COMPANY
• Decision Date: 06 June 1921
• Court: Missouri Supreme Court

231 S.W. 930

288 Mo. 290

NATIONAL REFRIGERATOR COMPANY, Appellant, v. SOUTHWEST MISSOURI LIGHT COMPANY

Supreme Court of Missouri, First Division

June 6, 1921

Appeal from Jasper Circuit Court. -- Hon. Grant Emerson, Judge.

Affirmed.

E. K Robinett and Dewey & Foulke for appellant.

(1) The court erred in finding the issues for the defendant, and that the contract sued upon, together with the performance of same, was within the purview of Secs. 3027-3040, R. S. 1909 relating to the licensing of foreign corporations in this State, because the contract and the evidence adduced regarding the performance of same shows that the whole transaction was interstate commerce and comprised within the meaning of the words "commerce among the several states" as used in the Federal Constitution, Article 1 Section 8, and that the said transaction was not subject to state regulation and was not within the purview of the statutes of Missouri pertaining to foreign corporations. International Text Book Co. v. Gillispie, 229 Mo. 397; Jewel Tea Co. v. Carthage, 257 Mo. 383; Hess Warming Co. v. Grain Elevator Co., 217 S.W. 493; York Mfg. Co. v. Colley, 247 U.S. 21; Cooper Mfg. Co. v. Ferguson, 113 U.S. 736; Rearick v. Penna, 203 U.S. 512; Dozier v. Alabama, 218 U.S. 127. (2) A contract or negotiation which contemplates and results in the importation or introduction of merchandise into one state from another is interstate commerce, the test being the importation. Robins v. Taxing District, 120 U.S. 489; Crutcher v. Kentucky, 141 U.S. 47; Crenshaw v. Arkansas, 227 U.S. 389; Caldwell v. North Carolina, 187 U.S. 622; Kansas City v. McDonald, 175 S.W. 919; Dozier v. Alabama, 218 U.S. 124. (3) It is immaterial whether the contract is made in the state of the purchaser or of the buyer as affecting its interstate character. And it is also immaterial in whose name the goods are shipped. (4) Caldwell v. Carolina, 187 U.S. 622; Jewel Tea Co. v. Carthage, 257 Mo. 383; Cooper v. Mfg. Co., 113 U.S. 727; Dozier v. Alabama, 218 U.S. 124. (5) The character of the transaction in its interstate aspect is not affected even though the consummation of the contract may necessitate the performance of certain services inherently relating to and connected with the subject matter of the sale, that is services relevant and appropriate to the agreement made and inseparable therefrom. York Mfg. Co. v. Colley, 247 U.S. 21; Hess Warming & Ventilating Co. v. Grain Elevator Co., 217 S.W. 493; Jewel Tea Co. v. Carthage, 257 Mo. 383; Dozier v. Alabama, 218 U.S. 127; Engine & Mfg. Co. v. Vrooman Apartments Co., 154 Mo.App. 139. (6) The performance of individual contracts by a corporation in another state is not "a doing of business in the State" in the purview of the statute. Paint Co. v. Bredel Co., 193 F. 897; Cooper Mfg. Co. v. Ferguson, 113 U.S. 727; Caesar v. Capell, 83 F. 403. (7) Under comity of the States a foreign corporation has a right to use our courts, either as plaintiff or defendant. Reeder v. Robertson, 202 Mo. 522; Text Book Co. v. Gillispie, 229 Mo. 397.

C. C. Spencer and A. E. Spencer for respondent.

(1) Appellant's brief fails to comply with Rule 15 of this court, in that it does not allege, distinctly or otherwise, the errors committed by the trial court. Rule 15 provides that "the brief for appellant shall distinctly allege the errors committed by the trial court." Vahldick v. Vahldick, 264 Mo. 529; Squaw Creek Drain. Dist. v. Hayes, 217 S.W. 20; Ross v. Bewley, 178 S.W. 495. (2) The record filed by appellant does not show (1) that appellant filed any motion for a new trial, or (2) that any bill of exceptions was ever filed in the cause. Hence there is nothing before the court but the pleadings, stipulations of parties, and the judgment. Cunningham v. Consolidated School Dist., 215 S.W. 249; Wallace v. Libby, 231 Mo. 341; Langstaff v. Webster Groves, 246 Mo. 223. (3) The evidence fully sustains the finding, on the theory that appellant, in attempting to perform the contract, was doing business in Missouri, within the meaning of the statutes relating to foreign corporations. It was admitted that it was a foreign corporation and had not complied with such statutes. Therefore the contract was void, and appellant would not maintain any suit in action, either legal or equitable, in the courts of this state, upon its demand. R. S. 1909, secs. 3037, 3039 and 3040. (a) The plaintiff in carrying out the contract sued on was transacting business in the State of Missouri. Ntl. B. & L. Assn. v. Denson, 189 U.S. 408, 47 L.Ed. 870; United Lead Co. v. Elevator & Mfg. Co., 222 Ill. 199; John Deere Plow Co. v. Wyland, 69 Kan. 255, 76 P. 863; Tomson v. Iowa State Assn., 88 Neb. 399, 129 N.W. 529; Pennsylvania Co. v. Meyer, 197 U.S. 407, 49 L.Ed. 810; Williams v. Scullin, 59 Mo.App. 30; Chicago Mill & Lumber Co. v. Sims, 197 Mo. 507; Hogan v. City of St. Louis, 176 Mo. 157. (b) And it is equally certain that the transaction of business in this State by a non-complying foreign corporation makes all its contracts void, except in the case of transactions entirely within interstate commerce. Parke, Davis & Co. v. Mullett, 245 Mo. 168; Broom Co. v. Mo. F. & C. Co., 195 Mo.App. 305; Tri-State Amusement Co. v. Forest Park Co., 192 Mo. 404; Mill & Lumber Co. v. Sims, 197 Mo. 507; United Shoe Mfg. Co. v. Ramlose, 210 Mo. 631; Amalgamated Z. & L. Co. v. Mining Co., 221 Mo. 7; State ex rel. v. Robertson, 271 Mo. 475; Osborne & Co. v. Shilling, 74 Kan. 675. (c) The transaction here was not one of interstate commerce, but the things done by plaintiff amounted to doing business in Missouri within the meaning of the statutes relating to foreign corporations. General Ry. Signal Co. v. Virginia, 246 U.S. 500; Browning v. Waycross, 233 U.S. 16; State ex rel. v. Arthur Greenfield Co., 205 S.W. 619; City of St. Louis v. Parker-Washington Co., 271 Mo. 242; Wichita F. & S. Co. v. Yale, 194 Mo.App. 60; Refrigerating Machine Co. v. Penn. H. & P. Co., 178 F. 696; St. Louis Fireproofing Co. v. Beilharz, 88 S.W. 512; Smythe Co. v. Ft. Worth G. & S. Co., 105 Texas, 8, 142 S.W. 1157, 128 S.W. 1136; Buhler v. Burrowes Co., 171 S.W. 791; General Ry. Signal Co. v. Commonwealth, 118 Va. 301; Hastings Indus. Co. v. Moran, 143 Mich. 679; Curtain Co. v. Jacobs, 163 Mich. 72; Amusement Co. v. E. Lake Chutes Co., 174 Ala. 526; Mfg. Co. v. Dothan Bank, 176 Ala. 229; Nickerson v. Tank Co., 223 F. 843.

OPINION

WOODSON, P. J.

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, Missouri, 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 dollars, payments to be made as follows:

"Six thousand dollars on arrival of machines in Joplin, Missouri.

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

"Ten thousand dollars or balance in two notes of $ 5,000 each payable in one and two years with interest at the rate of six per cent per annum. These notes to be executed by the purchasers 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 count 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...