Roberts v. Chatwin

• Decision Date: 23 June 1913
• Citation: 158 S.W. 497,108 Ark. 562
• Parties: ROBERTS v. CHATWIN
• Court: Arkansas Supreme Court

158 S.W. 497

108 Ark. 562

ROBERTS v. CHATWIN

Supreme Court of Arkansas

June 23, 1913

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

Judgment affirmed.

John W Newman, for appellant.

1. A foreign corporation engaged in business in this State can make no contract, nor bring suit on any contract made in the State until it has complied with the statute. Kirby's Dig., §§ 832, 833; 77 Ark. 205. The assignee of a contract made by such a corporation without having complied with the law, stands in no better attitude than the corporation itself.

2. The use of the spur track was a vital part of the contract. Without it, appellant could do nothing. The obligations of the contract were mutual, and the deprivation of the use of the spur track releases appellant from liability. 65 Ark 320, 324; 57 Ill.App. 659; 41 Ill. 470.

Terry, Downie & Streepey, for appellees.

1. It is not necessary to file any of the papers in the county clerk's office, the statutes relied on by appellant having been repealed by the Wingo act, by implication. Acts 1907, p. 744, §§ 1, 2; 82 Ark. 302-306.

The act is clearly separable. 54 L.Ed. (U.S.) 423, 430.

2. The evidence sustains the verdict. 90 Ark. 512, 514; 96 Ark. 606, 608.

3. If the recovery by the intervener is proper, appellees are entitled to recover that amount from the appellant, under the terms of the contract sued on.

Coleman & Lewis, for intervener.

1. If the contracts were made in Louisiana, the domicile of the Chatwin Bros. Rip-Rap & Contracting Company, and there is no showing to the contrary, they were valid, whether the company complied with the laws of Arkansas or not, and are enforceable here. 95 Ark. 13. But, if the contract was made in this State and the statute not complied with, the corporation having assigned its contract with appellant to A. C. Chatwin and Samuel Chatwin, there is nothing in our statute to prevent them from bringing this suit. The statute applies to corporations, not individuals. 90 P. 765-6. 77 Ark. 205.

2. Appellant received all the rights and privileges called for under his contract. As to the use of the spur track, that was "subject to the rules and regulations of the St. Louis, Iron Mountain & Southern Railway Company."

OPINION

MCCULLOCH, C. J.

A written contract was entered into on February 12, 1909, between the Big Rock Stone & Construction Company, a domestic corporation, and Chatwin Bros. Rip-Rap & Contracting Company, a foreign corporation, reciting that the former owned lands and was lessee of certain other lands fronting on the Arkansas River in Pulaski County, Arkansas, and that for a certain consideration named in the contract, it gave to the last-named corporation "the right to take sand from the Arkansas River and along and in front of the land embraced in the leases recited therein, and the exclusive right to load and store same at the point where the present sand plant is located, and at a point above the rock crusher." The contract also gave the last-named corporation "the right of ingress and egress into and over said land during the period covered by this contract," and "the right to carry on a sand business at the point where the sand plant is now located on said premises." The contract also contains the following clause:

"4th. The party of the second part shall have the right to use the spur tracks along the river bank for loading its cars, subject to the rules and regulations of the St. Louis, Iron Mountain & Southern Railway Company, but in so doing, it shall not interfere with the loading, unloading, or moving of cars used by the party of the first part for quarrying or shipping its rock."

The consideration named in the contract was that the lessee should pay to the lessor the sum of $ 200 per annum, and that it should deliver to the lessor certain quantities of sand per month at specified prices. The contract was to continue in force from the date of its execution up to September 23, 1912, unless sooner terminated by agreement of parties.

The lessee, said Chatwin Bros. Rip-Rap & Contracting Company, did not take any steps in the performance of the contract, but by written contract entered into with appellant, Mord Roberts, on February 15, 1909, it assigned to appellant said contract with the Big Rock Stone & Construction Company in consideration of the undertaking on appellant's part to perform said contract and to pay to said Chatwin Bros Rip-Rap & Contracting Company certain sums per cubic yard for sand and gravel delivered under the contract with the Big Rock Stone & Construction Company, etc.

Appellant proceeded in the performance of the contract and delivered sand pursuant to the terms thereof, but in July, 1910, ceased performance of the contract.

On June 21, 1911, Chatwin Bros. Rip-Rap & Contracting Company assigned all its interest in the contract with appellant to appellees, A. G. Chatwin and Samuel Chatwin, and the latter instituted this action against appellant in the circuit court of Pulaski County to recover certain sums of money alleged to be due under the terms of the contract.

The Big Rock Stone & Construction Company intervened in the action, asserting a claim for the amount due it under the contract, and the cause was tried before the court sitting as a jury upon the claim of appellees, A. G. Chatwin and Samuel Chatwin, as plaintiffs, and the Big Rock Stone & Construction Company as intervener.

The court found from the testimony that appellant was indebted to the plaintiffs in the sum of $ 834.58, and that the intervener was entitled to recover the sum of $ 364.52 from the plaintiffs under the contract. Therefore, judgment was rendered in favor of the plaintiffs for said sum of $ 834.58, and of that sum it was adjudged that the intervener recover said sum of $ 364.52. An appeal has been prosecuted from that judgment.

The first point made is, that the contract was void because the Chatwin Bros. Rip-Rap & Contracting Company was a foreign corporation which had not complied with the statute of this State, authorizing it to do business here at the time the contract was entered into.

The position of counsel for appellant is based upon the contention that the act of May 23, 1901 (Kirby's Digest, §§ 832, 833), which required foreign corporations, before doing business in the State, to file, both with the Secretary of State and with the county clerk of the county where business was to be transacted, a copy of its articles of incorporation, was then in force, and that that feature of the statute was not complied with.

The General Assembly of 1907 enacted a statute, approved May...