Star-Chronicle Pub Co. v. United Press Ass'ns
| Decision Date | 03 March 1913 |
| Docket Number | 3,851. |
| Citation | 204 F. 217 |
| Parties | STAR-CHRONICLE PUB. CO. v. UNITED PRESS ASS'NS. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Shepard Barclay, of St. Louis, Mo. (William R. Orthwein, P. H Cullen, and Thomas T. Fauntleroy, all of St. Louis, Mo., on the brief), for plaintiff in error.
G. B Arnold, of St. Louis, Mo. (Jay W. Curts, of Cincinnati, Ohio and Campbell Cummings, of St. Louis, Mo., on the brief), for defendant in error.
Before SANBORN, Circuit Judge, and WM. H. MUNGER and TRIEBER District judges.
WM. H MUNGER, District Judge.
On the 12th day of September, 1908, at New York City, in the state of New York, the United Press Associations, a corporation, organized under the laws of the state of New York, was engaged in the business of gathering news throughout the different states of the United States, as well as through foreign countries, preparing news reports thereof in the city of New York and at other points, for distribution throughout the several states, and selling and contracting for the right and privilege of publishing said news reports by the owners and publishers of various newspapers throughout the United States, and delivering, by telegraphic communication, from said city of New York, Chicago, Ill., and other points of distribution in the several states, such reports to such publishers.
On said 12th day of September, 1908, said United Press Associations, in the city of New York, in the state of New York, entered into a contract with the Star-Chronicle Publishing Company, a corporation organized under the laws of the state of Missouri, by the terms of which said United Press Associations sold to the Star-Chronicle Publishing Company the privilege of publishing in the Sunday Star and Chronicle, a newspaper printed in the English language at St. Louis, Mo., on Sundays, the full Saturday night reports of the United Press Associations, and agreed to deliver to the Star-Chronicle Publishing Company its news reports, foreign and domestic, so far as it was practicable to do. The contract provided that, in all cases of rebate granted by the telegraph company on account of wire trouble, the Star-Chronicle Publishing Company was to receive the same, provided that said full Saturday night report of the United Press Associations should be filed for the Star-Chronicle Publishing Company at Chicago, Ill., or elsewhere, if the Star-Chronicle Publishing Company so elected. The Star-Chronicle Publishing Company agreed to receive and accept said news reports, publishing such parts thereof as it might desire, and to pay to the United Press Associations at its office $25 per week; and the Publishing Company agreed to furnish the Press Associations the local news within 15 miles of the office in which the Publishing Company's newspaper was published, without cost to the Press Association. Said contract contained the following provision:
'This agreement shall continue for 12 months from the date hereof, and shall thereafter renew itself for like periods until either party has notified the other at least 60 days before the end of any of said periods of its desire to terminate this agreement.'
Subsequently, and on the 9th day of November, 1908, at New York City, in the state of New York, the same parties entered into another agreement of the same character, by the terms of which the United Press Associations sold to the Publishing Company the right and privilege of publishing in the Star and Chronicle, a newspaper printed in the English language, at St. Louis, Mo., daily except Sundays, the full day report of the United Press Associations, and agreed to deliver to the said Publishing Company its news reports, foreign and domestic, so far as practicable. The contract contained the same provisions with regard to rebates granted by the telegraph company and the reports to be filed for said Publishing Company at Chicago, Ill., or elsewhere, if it so elected, and its automatic renewal unless notice was given, etc., and the Publishing Company agreed to receive and accept said news reports and pay for the same $153 per week.
The Press Associations delivered such news to the Publishing Company pursuant to said contracts, and the same were received and paid for by the Publishing Company up to and including the week ending September 3, 1910, and the Press Associations delivered to the Publishing Company and the Publishing Company received said reports, under said contracts, for a period of 9 weeks after September 3, 1910, for which 9 weeks service the Publishing Company failed and refused to pay. On the 14th day of December, 1910, said Press Associations (as plaintiff) instituted its suit in the United States court for the Eastern judicial district of the state of Missouri, against said Publishing Company (as defendant), stating in its petition that there was due it from the defendant, on the contract of September 12, 1908, for the service which it rendered for the 9 weeks after the 3d of September, 1910, the sum of $225, and further alleged that, on the 9th day of November, 1910, defendant, without any just cause or lawful excuse, and against the consent of the plaintiff, refused to receive and accept from plaintiff said news reports and news service, and repudiated and abandoned said agreement; that plaintiff had been ready and willing to perform all the terms of the contract on its part to be performed up to the expiration of the contract, September 12, 1911; that it had sustained damage by reason of the breach of the contract on the sum of the defendant to receive and accept such news reports, in the sum of $836, and it asked judgment for both of said amounts, with interest upon the $225.
It also alleged in its petition, as a further and second cause of action, that there was due it under the contract of date November 9, 1908, for the news which it had furnished under the contract, and which was received and accepted by the defendant, the sum of $1,453.50, and it further alleged a breach of the contract by the defendant, on November 9, 1910, in the same manner as before stated in the first cause of action, and that it was damaged by reason thereof in the sum of $6,533.80, and it prayed judgment upon its claims arising under said contract of November 9, 1908, for the sum of $1,453.50, with interest, and the additional sum of $6,533.80.
To this petition the Publishing Company answered, stating, in substance: First. That by the terms of the contract some of the business was to be done in the state of Missouri; that plaintiff did in fact do a great deal of its business wholly in the state of Missouri; that it had not complied with the statute of the state of Missouri and obtained a license authorizing it as a foreign corporation to transact business in said state; and that, because of such failure to comply with the statutes of the state of Missouri, no actions could be maintained upon said contract. Second. That the contract had been terminated by a notice given by the defendant to the plaintiff 60 days prior to the expiration of the contract. Third. The answer alleged a settlement and adjustment. Fourth. A general denial.
The case was tried to a jury, and a verdict returned in favor of plaintiff for the sum of $1,678.50, with interest thereon on the first count of the petition, and for $6,533.80 on the second count of the petition. The defendant has brought the case here for review.
The first question to be determined is whether or not the plaintiff, because of not having complied with the provisions of the statute of the state of Missouri, relative to transacting business within the state by foreign corporations, can maintain an action to recover upon said contract. This requires a consideration of the nature of the contracts and the business performed by the plaintiff in the state of Missouri, respecting the fulfillment of the contracts. The applicable provisions of the statutes of Missouri are sections 3039 and 3040, Revised Statutes 1909, which sections contain the following provisions:
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