Pacific Lumber Company of Illinois v. Jamison Lumber & Shingle Company
| Decision Date | 29 January 1923 |
| Citation | 247 S.W. 225,213 Mo.App. 111 |
| Parties | THE PACIFIC LUMBER COMPANY, OF ILLINOIS, Appellant, v. THE JAMISON LUMBER & SHINGLE COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Thos. B Buckner, Judge.
AFFIRMED.
Judgment affirmed.
Edwards Kramer & Edwards and G. C. Weather-by for appellant.
John C Grover for respondent.
Defendant, being under contract to purchase of plaintiff three cars of California redwood lumber, breached the contract by afterwards cancelling the order and refusing to accept the lumber should plaintiff ship it. Thereafter this suit was brought to recover damages for the breach based upon an alleged decline in the market price from the contract price. In other words, plaintiff seeks to recover the difference between the contract price and the market price at the time of the breach.
The answer was a general denial coupled with the defense that the plaintiff, being a foreign corporation, was not licensed to do business in Missouri. There was no reply filed.
The case was tried by the court, a jury being waived. At the conclusion of the evidence the court rendered judgment for defendant and, in doing so, made an order to "let the record show" that the court held plaintiff was not entitled to recover "because the evidence shows it (plaintiff) is a foreign corporation which has not complied with the laws to do business in this State; also that plaintiff's evidence does not show more than nominal damages." Thereupon the plaintiff appealed.
There were no instructions asked or given. Consequently, the judgment of the trial court must be affirmed if there is any theory upon which it can be upheld.
The breach of the contract by defendant is not controverted, and it is admitted that plaintiff is a foreign corporation and has no license to do business in Missouri. As we interpret the record, the court held that the plaintiff was "doing business' in Missouri within the meaning of our statutes (Secs. 9792-3, R. S. 1919) requiring the taking out of a license ad providing, as one of the penalties for a violation thereof, that no action can be "maintained" on the contract; also that the court found from all the evidence that there was no decline in the market price at the date of the breach and consequently plaintiff could not recover more than nominal damages. If the court was wrong in holding that plaintiff could not maintain the suit because it had no license, then, even though the court was right in holding that upon the whole evidence there was no decline in market price, the judgment must nevertheless be for plaintiff for one cent, or nominal damages, for the conceded breach, which would carry with it a judgment for costs in plaintiff's favor. So that the first question for us to settle is whether the court erred in holding that plaintiff was "doing business" in the State in the sense that required a license.
Plaintiff, an Illinois corporation, was located in Chicago. The mills which manufactured its lumber were in California; and from its headquarters in Chicago plaintiff was engaged in selling and distributing at wholesale its product. Defendant was a corporation of Missouri engaged at Kansas City in the lumber business.
On April 20, 1920, the defendant, having been solicited by plaintiff's agent, Bannister, at Kansas City, gave to him a written "original order" addressed to "Pacific Lbr. Co. of Illinois, Grand Ave. Temple" for the cars of lumber, involved herein, to be shipped to defendant at Council Bluffs, Iowa (no route named), prices f. o. b. Council Bluffs "on 55 [cents] rate," using "straight" bill of lading to purchaser, shipments to be made in April or May, 1920. Bannister took the order to his office in the Grand Avenue Temple Building in Kansas City and, to use his own words, "wrote it up" in duplicate, sending the original of what he wrote up to the plaintiff at Chicago and the carbon copy thereof to the defendant. His evidence shows that what he did was to make two copies of the order given him one of which he sent to plaintiff and the other to the defendant. Upon receipt of the copy sent to Chicago, plaintiff modified the terms therein by writing its acceptance thereof across at Council Bluffs, f. o. b. Scotia, California, prices based on 55 [cents] rate, and shipments to be made in "May, June or July or sooner at mill's convenience." Acknowledgment or confirmation of the order as thus modified was sent in duplicate to defendant by plaintiff at Chicago, and the defendant signified its consent to the changed terms whereby the cars were to be shipped to defendant the face of one of the duplicates and returning it by mail to plaintiff at Chicago.
On June 8, 1920, before the cars in controversy were shipped, defendant requested Bannister, the plaintiff's Kansas City agent, to hold up the shipment for awhile. The record shows that Bannister agreed to take the matter up with the Chicago office, he saying he had no authority to agree to hold the shipment up. Further disclosure as to what was done by Bannister was obviated by a statement on the part of defendant that no question would be made about delay in delivery, as the defendant had requested withholding of shipment until further orders.
The plaintiff, not having heard anything further from defendant as to when the shipments should be made, wrote a letter, on August 16, 1920, from its Chicago office to the defendant asking for shipping instructions. On August 18, 1920, defendant, in a letter addressed to plaintiff at Chicago, cancelled the order and refused to take the cars. On September 13, 1920, defendant mentioned the matter to Bannister again and the latter told defendant he had no authority to agree to the cancellation, and he didn't know what plaintiff would do about it nor whether it would bring suit or not, but that it might; and he suggested to defendant that it settle the matter, to either take the lumber or make some settlement, but defendant refused.
The record discloses the following further facts, gleaned principally from a cross-examination of plaintiff's witnesses:
That Bannister for two years and a half was the plaintiff's "salesman" for the territory of Missouri, Kansas and Oklahoma; that the office he occupied was in the Grand Avenue Temple Building in Kansas City, Missouri; that plaintiff's name was on the door, and it maintained the same, paying the rent therefor, owning the furniture and office fixtures, and paying the stenographer's salary and other office expenses; that the plaintiff's name was in the telephone directory, and the letter-heads used by Bannister were the letter-heads of At the lower left-hand corner...
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