Seneca Textile Corp. v. Missouri Flower & F. Co.

• Decision Date: 04 October 1938
• Docket Number: No. 24721.,24721.
• Citation: 119 S.W.2d 991
• Court: Missouri Court of Appeals
• Parties: SENECA TEXTILE CORPORATION v. MISSOURI FLOWER & FEATHER CO.

119 S.W.2d 991

SENECA TEXTILE CORPORATION v. MISSOURI FLOWER & FEATHER CO.

No. 24721.

St. Louis Court of Appeals. Missouri.

October 4, 1938.

Appeal from St. Louis Circuit Court, Division No. 1; M. G. Baron, Judge.

"Not to be published in State Reports".

Suit by the Seneca Textile Corporation against the Missouri Flower & Feather Company to recover for merchandise allegedly sold and delivered to plaintiff. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment affirmed.

Grant & Grant, of St. Louis, for appellant.

White & White, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This suit was begun on December 19, 1934, in a justice of the peace court in the city of St. Louis, by plaintiff, a New York corporation, against defendant, a Missouri corporation, to recover $205.61 and interest for merchandise claimed to have been sold and delivered to defendant.

The record fails to set out plaintiff's statement filed in the case, but it appears otherwise that the date of the delivery of the merchandise was November 3, 1933.

The answer of defendant consisted of a general denial and an allegation that at and prior to the time of the transaction in controversy, plaintiff had never complied with the Missouri corporation laws and was "doing business" in this State without any license so to do, as required by statute in relation to foreign corporations. It appears however, that plaintiff, subsequent to the time of the transaction involved in this case, did take out a license to do business in Missouri.

After the cause reached the circuit court by appeal a jury was waived and the cause was tried on March 11, 1937, by the trial judge, who found in favor of the defendant, and the plaintiff, after filing an ineffective motion for a new trial, brings the cause to this Court by appeal for review. In the trial below no instructions were asked by either party and none given by the court; and no findings of facts separate from the conclusions of law were asked by either party.

The principal question involved in this case is, was plaintiff "doing business", within the meaning of those words, in Missouri?

Plaintiff called one witness only, Morris Friedman, who testified as follows:

"I am employed by the Seneca Textile Corporation and was so employed in 1933. I know the defendant, Missouri Flower & Feather Company. I know Leon Steinbeck, I don't know whether he is now connected with the Missouri Flower & Feather Company. He was in 1933. He held the position of Factory Manager.

"Q. Did you sell the Missouri Flower & Feather Company merchandise for plaintiff in 1933? A. Yes, sir.

"Q. I show you invoice and ask you if you sold them that merchandise? A. Yes, sir.

"Q. You took that order? A. Yes, sir.

"Q. Sent it to New York? A. Yes, sir.

"Q. Prepared by the home office in New York? A. Yes, sir.

"Q. Was that merchandise delivered to them? A. Yes, sir.

"Q. Has your company ever been paid for it? A. No, sir.

"Cross Examination.

"I live at 7564 Buckingham, Clayton. I lived there about a year and have lived in St. Louis 21 years. I have been employed by the Seneca Textile Corporation for about ten years.

"Q. About ten years; does the Seneca Textile Corporation maintain an office in St. Louis, or do they not? A. No, sir.

"Q. Where do you office? A. I office with another concern.

"Q. And where is that concern? A. In the Louderman Building.

"Q. Isn't the Seneca Textile name on that door? A. Yes, sir.

"Q. And that is the St. Louis office in the Louderman Building? A. Yes, sir.

"Q. And it was also on the door at that time, was it not? A. I believe so.

"Q. Seneca Textile Corporation has its telephone listed in the telephone directory, and did at that time, did it not? A. Yes, sir.

"Q. Who pays the rent for that office in St. Louis? A. The Cohen, Hill & Marks Company.

"Q. Who is Cohen, Hill & Marks Company, aren't they associated with Seneca Textile Corporation? A. I don't know.

"Q. Do you have a sign there? A. We do not, no, sir.

"Q. Who does? A. Cohen, Hill & Marks Company.

"Q. Is their name on the door, too? A. Yes, sir.

"Q. In other words, Seneca Textile name on the door, and was on the door at the time this alleged account was entered into? A. I believe so.

"Q. Now, you have a warehouse here in St. Louis, do you not? A. Yes.

"Q. And that warehouse is at the Holstein Express Company? A. Yes, sir.

"Q. Where is that warehouse? A. On Sixth and Carr.

"Q. You have merchandise belonging to the Seneca Textile Corporation —

"Mr. Grant: We object to what they do now.

"Mr. White: Referring to 1933. These are questions referring to 1933.

"Q. You did have merchandise on the floor at the time that we are talking about? A. Yes, sir.

"Q. And you still have merchandise on the floor now? A. Yes, sir.

"Q. Now, you had the authority to release that merchandise from the floor at that time? A. Yes, sir.

"Q. And this merchandise we are talking about was sent out on memo from the warehouse, was it not? A. Sir?

"Q. And the merchandise in question that you sold, some of it was on the floor of your warehouse? A. That is right.

"Q. Are you under bond with your company? A. Yes, sir.

"Q. You are; you were at that time, too? A. No.

"Q. You weren't at that time? A. As far as I know.

"Q. How long has the Seneca Textile been doing business in St. Louis? A. Much longer than I have been with them.

"The Court: You have been with them how long? A. Ten years.

"Q. How long do you know that they have been doing business in this State? A. At least twenty years.

"Mr. White: Now, during the time that we are talking about, you would call on various St. Louis customers, would you not? A. Yes, sir.

"Q. And take orders? A. Yes, sir.

"Q. And some of these orders were shipped right from the warehouse, were they not? A. Yes, sir.

"The Court: What warehouse? Mr. White: In St. Louis from the Holstein Express Company? A. Yes, sir.

"Q. And that was your warehouse? A. That is right.

"Q. Did you also keep the records down here in St. Louis from time to time as to how much merchandise you had at the warehouse? A. We did, stock record.

"Q. In your St. Louis office here? A. Office here, yes, sir."

Defendant's Exhibit 1 was identified by the witness and offered in evidence, and is as follows:

                    "The Seneca Textile Corporation
                "Air Mail      Date         Sept. 6, 1934
                "To Morris Friedman St. Louis Office
                "From M. Alexander
                "In Re
                           _______________
                

"As requested in your Sept. 5th letter, I am enclosing herewith a resume of all invoices and credits rendered the Missouri Flower & Feather Co. since Sept. 1933. For the month of Sept. 1933 there were no invoicings, so the first bill we show is one of Oct. 4th, 1933.

"During the entire period, there was only one credit allowed your customer and this is our credit of Feb. 2nd in the amount of $199.21.

"Trusting that the above will prove helpful to your customer, we are

                "Yours very truly        Alexander"
                

Witness Friedman testified further:

"Q. That is an inter-office communication between your New York office and your St. Louis office, is it not? A. Yes, sir.

"Q. And that has reference up here in the right hand corner to your St. Louis office? A. Yes, sir.

"Q. I believe you did testify you had sold to various merchants in St. Louis? A. Yes, sir.

"Re-direct Examination.

"Q. Are you on salary or commission? A. Commission.

"Q. No regular salary paid to you? A. No, sir.

"Q. You just get commission on what you sell? A. Yes, sir.

"Q. (By Mr. White) Talking about that time? A. Yes, sir."

Charles Holstein, called by defendant, testified on direct examination that he was in the transfer business and operated the Holstein Express Company on North Sixth Street; that plaintiff had merchandise there during 1933 and 1934 and it was sold on instructions from Morris Friedman, and was delivered to St. Louis trade.

"Cross Examination.

"Q. Did you deliver the merchandise that we have brought this suit for and covered by this receipt to the defendant? A. This is duplicate of the original that they got.

"Q. Did you deliver the merchandise? A. Not me, one of my men.

"Q. You got their receipt for it and this is duplicate which he signed later? A. Yes, sir.

"The Court: Who pays the rent of the space that they occupy in your warehouse? A. Mr. Friedman.

"Q. Mr. Friedman pays you the rent? A. Yes, sir.

"Q. You bill them for rent how much, how often rather? A. We bill them so much for the space they have, we don't rent the warehouse, we rent them space at $25.00 a month.

"Q. You rent them space at the rate of $25.00 a month, you have done this now for how long? A. That has been going on maybe, I think about three years, I can look up and find out, about three years.

"Q. At the time you delivered this merchandise to the defendant in this case? A. Yes, sir.

"Q. They were then operating on that basis, with you? A. Yes, sir.

"Q. Paying you $25.00 a month rent for the space they rented from you in which they kept their merchandise? A. Right.

"The Court: All right."

Plaintiff's counsel assert that under the evidence adduced, plaintiff was engaged in interstate commerce and was not "doing business" in this State at the time of this transaction, and cite the following cases in support of their contention: State to Use Monroe County v. Pioneer Creamery Co., 211 Mo.App. 116, 245 S.W. 361; State ex rel. v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28, 85 A.L.R. 1378; International Text-Book Co. v. Gillespie, 229 Mo. 397, 129 S.W. 922; Corn Products Mfg. Co. v. Western Candy & Bakers' Supply Co., 156 Mo.App. 110, 135 S.W. 985.

Sections 4598 and 4599, R.S.Mo.1929, Mo.St.Ann. §§ 4598, 4599, pp. 2034, 2040, deal with the disability of foreign corporations to maintain suits in this State in the event they engage in "doing business" in this State without being duly qualified by a previous compliance with the Missouri laws as set out therein, and provide in part as follows:

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