Republic Rubber Co. v. Adams

• Decision Date: 02 June 1919
• Docket Number: No. 19791.,19791.
• Citation: 213 S.W. 80
• Parties: REPUBLIC RUBBER CO. v. ADAMS.
• Court: Missouri Supreme Court

213 S.W. 80

REPUBLIC RUBBER CO. v. ADAMS.

No. 19791.

Supreme Court of Missouri, Division No.

June 2, 1919.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Suit by the Republic Rubber Company against Bart S. Adams. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judson, Green & Henry, of St. Louis, for appellant.

John C. Tobin, of St. Louis, for respondent.

GRAVES, J.

Plaintiff sues upon an account, aggregating $29,740.58, demanding interest thereon from date of demand. The petition is in usual form, with copy of account attached.

Defendant answered: (1) By averring that plaintiff is an Ohio corporation manufacturing and selling automobile tires and inner tubes; (2) denies that he owes or is indebted to plaintiff; (3) avers that plaintiff was doing business in this state without license, and is thereby prohibited by our statutes from bringing and maintaining this suit; (4) then we have in such answer four separate counterclaims, aggregating $32,633.48.

By special demurrer filed the plaintiff sought to strike out all that portion of the answer invoking the statutes of this state as precluding plaintiff from bringing and maintaining this suit. This demurrer the court sustained.

The cause was referred to Hon. Charles W. Bates, as referee, which report of the referee, although exceptions have been filed by defendant, was sustained and approved by the court, and judgment entered accordingly, from which defendant has appealed.

Whilst the aforesaid demurrer was filed before the referee was named, no ruling was made thereon until after the referee's report was filed. The referee therefore passed upon this question as found in the pleadings, holding that the plaintiff was not doing business in this state within the meaning of our statutes, but was doing an interstate business. The referee therefore allowed the plaintiff's claim and one of defendants counter claims thus:

"I respectfully recommend that the special demurrer to defendant's third amended answer and counterclaim be sustained, and that plaintiff be permitted to file a reply by way of general denial to said third amended answer and counterclaim, and that plaintiff be given a judgment against the defendant for the difference between $28,978.62 and interest at the rate of 6 per cent. per annum from February 17, 1913, to the date of judgment, and $792.65, with interest at the rate of 6 per cent. per annum from September 25, 1913, to the date of judgment, and for costs."

Defendant in the abstract filed herein says that he abides by the findings of the referee on the three counterclaims, wherein there was a finding against him. These therefore drop out of the case, so as it now stands the questions left are very limited. In fact, they go largely to the demurrer, which was sustained as above indicated. The referee recommended that the demurrer be sustained, although he had found the facts against defendant on the character of plaintiff's business. When he found, as he did, that the business done in Missouri by plaintiff was an interstate business, then the defendant's statutes dropped out of the case as effectually as if a demurrer had been sustained placing the grounds otherwise. However, the question left is a single one. Other matters of detail will follow the course of the opinion.

I. When we prepared the foregoing statement, we had in mind an attempt to fully dispose of the case. Going over the record, we find that we will not be warranted in so doing. However, the foregoing statement will serve as an outline of the case. It will be noted that the referee recommended that what is denominated a "special demurrer" to the answer be sustained, and that the court did sustain such demurrer. The part of the answer struck at by this demurrer reads:

"Defendant further states that said plaintiff, Republic Rubber Company, is a corporation organized for pecuniary profit under the laws of the state of Ohio, and was, at the time referred to in plaintiff's petition herein, doing business in the state of Missouri, maintaining a local branch and place of business in said state at 1215 North Broadway, where it carried on business in its own name and kept a stock of goods from which sales were made by its local agent from day to day to the local trade in St. Louis and throughout the state of Missouri, and had not complied with the laws of the state of Missouri, namely, sections 3039 and 3040, Rev. Stat. of Missouri 1909, relating to foreign corporations, at the time the said goods described in plaintiff's petition were sold to defendant, nor at any time prior to January 13, 1913, in this, that said plaintiff, Republic Rubber Company, had not filed with the secretary of state, at the time said goods referred to in plaintiff's petition were sold to defendant, a copy of its articles and charter granted by the state of Ohio, and had not procured from the secretary of state a license to do business in the state of Missouri as required by the laws of Missouri above referred to.

"Defendant further states that plaintiff was also doing business in the state of Missouri through this defendant at 3408 Lindell avenue, in the city of St. Louis, Mo., at the time the goods mentioned in plaintiff's petition were sold to defendant without having complied with the laws of the state of Missouri relating to foreign corporations. Defendant further states that said goods were sold and delivered to defendant from and out of a larger stock of said goods kept and maintained by plaintiff in the city of St. Louis and state of Missouri.

"Defendant says that it was therefore unlawful for plaintiff, Republic Rubber Company, to transact business in the state of Missouri at the time the goods mentioned in plaintiff's petition were sold to defendant, because plaintiff had not complied with the statutes of Missouri relating to foreign corporations and had not taken out a license to do business in said state.

"Wherefore defendant says that plaintiff is not entitled to have, maintain, or prosecute this action, and asks to be hence dismissed with his costs."

What is...