Rogers v. Union Iron & Foundry Co.

• Decision Date: 19 July 1912
• Citation: 150 S.W. 100
• Parties: ROGERS et al. v. UNION IRON & FOUNDRY CO.
• Court: Missouri Court of Appeals

150 S.W. 100

ROGERS et al. v. UNION IRON & FOUNDRY CO.

St. Louis Court of Appeals. Missouri.

July 19, 1912.

Rehearing Denied October 15, 1912.

1. COMMERCE (§ 46)—FOREIGN CORPORATIONS —INTERSTATE COMMERCE.

A foreign corporation engaged solely in interstate commerce need not comply with Rev. St. 1909, §§ 3039, 3040, requiring foreign corporations to obtain a certificate to do business in the state in order to sue in the courts of the state ; and, as to interstate commerce, the provisions are void.

2. COMMERCE (§ 46)—FOREIGN CORPORATIONS —INTERSTATE TRANSACTIONS—CONTRACTS.

A foreign corporation operating in a sister state a furnace for the manufacture of pig iron and like products employed a general agent for the sale of its product. The general agent employed traveling salesmen. Sales were not made without first procuring specific authority. A buyer in Missouri understood that the product was made in a sister state, and had to be shipped to Missouri. He executed a contract, which showed that the iron was to be shipped, and which provided for delivery "f. o. b. cars St. Louis." Held, that the contract was an interstate transaction ; and an action for breach of contract was maintainable in the courts of Missouri, though the foreign corporation did not comply with Rev. St. 1909, §§ 3039, 3040, regulating foreign corporations.

3. WORDS AND PHRASES—"F. C. B."

The phrase "f. o. b." means free on board of vessel, car, or other conveyance which is to transport goods to a buyer (quoting 3 Words and Phrases, p. 2636).

4. CONTRACTS (§ 143)—CONSTRUCTION.

Where a contract admits of two constructions, one which will render the contract unlawful and the other lawful, the latter must be adopted.

5. COMMERCE (§ 46)—FOREIGN CORPORATIONS —INTERSTATE TRANSACTIONS.

A foreign corporation operating in a sister state a furnace for the manufacture of pig iron and like products employed a general agent to sell its product, and he employed traveling salesmen. No sales were made without first procuring specific authority. The corporation shipped cars of iron into St. Louis for delivery to buyers ; but on arrival the buyers rejected the shipment, or they were found not good, and the cars were taken by the general agent and delivered to other buyers, with whom contracts for the sale of iron had been made before the iron arrived in Missouri. Held, that the diversion of the shipments from one set of buyers to ahother did not make the transaction intrastate commerce, but the diversion was necessary for the carrying on of interstate commerce ; and an action for breach of contract was maintainable, though the corporation had not complied with Rev. St. 1909, §§ 3039, 3040.

6. SALES (§ 384)—BREACH OF CONTRACT— MEASURE OF DAMAGES.

Where a contract for the sale and purchase of pig iron was modified so as to make the time and amount of deliveries depend on the giving by the buyer of shipping instructions within a reasonable time, and the giving of shipping instructions were postponed from time to time by the seller's agent, at the request of the buyer, until a designated date, when the buyer repudiated the contract, the measure of damages was the difference between the contract price and the price at the date of the repudiation.

7. RECEIVERS (§ 172) — PERFORMANCE OF BANKRUPT'S CONTRACTS—TENDER.

Where a party has breached his contract in such a manner as to render performance or tender of performance by the receiver of the adverse party unnecessary, the receiver may proceed to recover damages as on an accrued claim.

8. RECEIVERS (§ 90) — PERFORMANCE OF BANKRUPT'S CONTRACTS—TENDER.

A receiver of a party to a contract has a reasonable time within which to elect to adopt or perform the contract, where performance is necessary ; and he cannot be put in fault for not adopting or performing, or tendering performance, before such reasonable time has expired.

9. RECEIVERS 172) — PERFORMANCE OF BANKRUPT'S CONTRACTS—TENDER.

Where a party to a contract breached it before the expiration of a reasonable time within which the receiver in bankruptcy of the adverse party could elect to adopt or perform the contract, the receiver was relieved from the duty of performance or tender, and could recover damages for the breach.

10. RECEIVERS (§ 98)—CLAIMS—ASSIGNMENTS —EFFECT.

Where the receiver of a party to a contract to sell petitioned the court for leave to assign the contract, and the petition recited as one of the reasons for the assignment to the proposed assignee that the latter had entire charge of all matters relating to the contract, and that all negotiations relating thereto had been conducted by him, and that he was familiar with the details, and an assignment in pursuance of leave granted all the right, title, and interest of the bankrupt in and to the contract and appointed the assignee to take all legal measures which might be proper for the enjoyment of the assigned premises, there was a sufficient assignment to authorize the assignee to sue on the contract for damages for ita breach by the adverse party.

11. APPEAL AND ERROR (§ 173)—QUESTIONS REVIEWABLE—QUESTIONS NOT RAISED IN TRIAL COURT.

Where a cause was tried on the theory that an assignment was sufficient, the defeated party could not, on appeal, raise the question of the insufficiency of the assignment.

12. ACCORD AND SATISFACTION (§ 5)—ACTS CONSTITUTING.

Where a debtor sent a cheek to the creditor for the exact amount due under an undisputed and liquidated claim, there was no consideration to support an accord and satisfaction of a claim not connected therewith.

Appeal from St. Louis Circuit Court ; William B. Homer, Judge.

Action by William A. Rogers and another, doing business as Rogers, Brown & Co., against the Union Iron & Foundry Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Suit to recover damages for breach of two contracts for the sale of pig iron. The petition was in two counts. The trial was to the court, a jury being waived, and plaintiffs had judgment on both counts of the petition, and the defendant has appealed. As no point is made as to the pleadings, it is unnecessary to set them forth.

It appears from the evidence, which consisted partly of an agreed statement of facts, that on and prior to April 17, 1907, and thereafter, the Sheffield Coal & Iron Company and the Napier Iron Works were corporations for pecuniary profit, organized under the laws of Alabama and Tennessee, respectively, and operating furnaces at Sheffield, Ala., and Napier, Tenn., respectively, at which places all their pig iron and other products were manufactured. Neither of them had ever done anything required of foreign corporations in order to be licensed to do business in Missouri; and neither of them had or kept any property, books, office, or place of business in this state. The plaintiffs, a partnership under the firm name of Rogers, Brown & Co., were iron brokers, having a main office at Cincinnati, Ohio, and a branch office in St. Louis, Mo. They were agents for the sale of pig iron and like products for 40 furnaces, including those of the Sheffield Company and Napier Iron Works. As such agents they sold the entire foundry pig iron output of the Sheffield Company, and a large part of the foundry pig iron output of the Napier Iron Works. From their branch office in St. Louis, they sent out salesmen to travel about Missouri and other states soliciting orders for said two corporations and other corporations which they were authorized to represent as sales agents. They were the only ones authorized to solicit orders in Missouri for said two corporations; but they were not confined to Missouri in doing soliciting. They had general authority to make and execute contracts for said two corporations for the sale of their foundry pig iron output in Missouri and other states at prices previously quoted to them. They never made a sale not within such general authority without first procuring specific authority to do so. They were compensated on a strictly commission basis, and paid their own office, traveling, and other expenses; neither of said corporations contributing thereto. Sometimes they delayed shipments at the request of a customer, and even canceled contracts, but never without first communicating with their principal and obtaining specific authority to do so. All sale contracts were made by the plaintiffs in the names of their principals; and said corporations did all their shipping from outside the state into Missouri, and always shipped direct to the purchaser with whom the sale of the property had been negotiated before it arrived in Missouri. There were, however, some exceptional instances where iron was shipped to the plaintiffs on consignment ; but none of those shipments ever came into Missouri until a purchaser had been procured for it, and then it came into the state directly to the purchaser. There were also several instances of so-called "diverted shipments"; that is, where a car of" iron had been shipped into Missouri consigned to one to whom a sale of it had been previously negotiated, and when it arrived here, either in the railroad freight yard or at the foundry of the purchaser, the purchaser rejected it, or the plaintiffs discovered that the purchaser was not "good pay." In such cases the plaintiffs had the car of iron delivered to some other person with whom a sale of iron of the same grade, etc., had been negotiated before this car had arrived in the state. The defendant is a Missouri corporation, having a foundry and place of business in the city of St. Louis, Mo. On April 17, 1907, in St. Louis, Mo., the plaintiffs, by their salesman representative, Edward Gross, acting as agents under their general authority for the Napier Iron Works, solicited and made and executed a contract with the defendant for the sale to the defendant of 150 tons of Napier No. 2 foundry pig iron, as follows:

                (Buyer will please sign and return this copy.)

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