State ex rel. Hays v. Robertson

• Decision Date: 12 July 1917
• Citation: 196 S.W. 1132,271 Mo. 475
• Parties: THE STATE ex rel. W. B. HAYS v. W. R. ROBERTSON et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

196 S.W. 1132

271 Mo. 475

THE STATE ex rel. W. B. HAYS v. W. R. ROBERTSON et al., Judges of Springfield Court of Appeals

Supreme Court of Missouri

July 12, 1917

Judgment quashed.

Sheppard & Sheppard, Leslie C. Green and Ernest A. Green for relator.

(1) The respondents, in their opinions filed in the case of Mergenthaler Linotype Company v. Hays, held, as a matter of law, that there was no evidence of the transaction of business by the plaintiff, Mergenthaler Linotype Company, in this State; in so holding, the decision was in direct conflict with three controlling decisions of the Supreme Court. Linotype Co. v. Hays, 181 S.W. 1183; Linotype Co. v. Hays, 182 Mo.App. 113; Machinery Co. v Ramlose, 210 Mo. 631; Machinery Co. v. Ramlose, 231 Mo. 508; Kansas City v. McDonald, 175 S.W. 917. (2) The opinions of the respondents are also in direct conflict with certain other decisions of the Supreme Court and of other courts of appeals, in holding that the answer filed by the defendant in said case in the circuit court admitted the execution of the contract of lease sued upon. Linotype Co. v. Hays, 181 S.W. 1183; Ruckman v Milling Co., 139 Mo.App. 256; Kelley v. Thuey, 143 Mo. 436; Bldg. & Loan Assn. v. Obert, 169 Mo. 518; Campbell v. Wolf, 33 Mo. 459; Bowling v. Hax, 55 Mo. 446.

David W. Hill for respondents.

(1) The lease in suit was executed on the 12th day of May, 1910, and the plaintiff at no time had an office in Missouri, and not doing business in this State until about the first day of January, 1913, and up to that time was transacting business through traveling salesmen, which is permissible, according to the last proviso of Sec. 3040, R. S. 1909. (2) The facts of this case on the second appeal being substantially the same as they were on the first appeal, the law of this case was settled by the Springfield Court of Appeals on the first appeal, by the opinion written by Judge Farrington, and among the many cases cited by the Springfield Court of Appeals, on the first appeal, are two of the cases which are referred to as controlling decisions of the Supreme Court, to-wit: United Shoe Machinery Co. v. Ramlose, 231 Mo. 508; United Shoe Machinery Co. v. Ramlose, 210 Mo. 631. In that opinion the Springfield Court of Appeals distinguishes the facts in the case last above mentioned from the facts in the case at bar. Linotype Co. v. Hays, 182 Mo.App. 113. (3) The most casual comparison of the facts in the case at bar with the facts in the cases cited by relator as controlling cases of the Supreme Court will convince this court that there is no conflict whatever. Furthermore, the two decisions of the Springfield Court of Appeals should be read together, and as they distinguish the facts of the case at bar from the facts stated in the decisions which relator says control, for those reasons, the writ of certiorari should be quashed. State ex rel. v. Ellison, 263 Mo. 509. (4) The court will bear in mind that no writ of certiorari was sued out as to the first decision of the Springfield Court of Appeals, but was only sued out after the case was decided a second time by the Springfield Court of Appeals. The first decision settled the law of the case, was not in conflict with any decision of the Supreme Court, and under the doctrine of stare decisis the Court of Appeals was bound to follow its decision. Cape Girardeau & T. B. T. R. Co. v. Bridge Co., 215 Mo. 286.

FARIS, J. Bond, J., dissents.

OPINION

In Banc.

Certiorari.

FARIS J.

This is an original proceeding by certiorari to bring up to this court the record of the Springfield Court of Appeals in the case of Mergenthaler Linotype Co. v. Hays, 181 S.W. 1183. Two opinions have been written in the case by the learned Springfield Court of Appeals. In the opinion last rendered but first above cited, references are made to the first opinion for many of the facts and for much of the law.

It is urged by relator as his ground for quashal, that the opinion of the Court of Appeals is in conflict with the case of United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, 109 S.W. 567, and of other cases of similar import. The point upon which the case turns is what constitutes the transaction by a foreign corporation of business in this State within the purview of sections 3037, 3039 and 3040, Revised Statutes 1909.

The facts in the Ramlose case which we held constituted the transaction of business in this State are thus stated in the reported case:

"Said company, accordingly, about December 18, 1900, and from time to time thereafter, leased certain machines to the defendant, including those he had formerly owned or claimed he owned. The leases contained various conditions, among which were: (1) That the machines should be used by him only in his factory in St. Louis; (2) that he should obtain from the lessor, at prices to be fixed by it, all parts necessary to keep the machines in repair, and also any additional machinery needed; (3) that he should pay all taxes levied on the machines; (4) that he should use the machines to their full capacity; (5) that he should pay the lessor a royalty of one cent a pair for all shoes manufactured, with a rebate allowance of fifty per cent if the royalty was paid by the 15th of the succeeding month; (6) that the lessor should have the right to attach indicators to the machines to register the number of shoes manufactured, and that the lessee should keep accurate accounts of the number of shoes manufactured; (7) that if he ceased to use exclusively the machines leased to him by the company, it should have a right to take possession thereof; (8) that the lease should run seventeen years, but that the lessor should have the right to terminate it for any breach thereof or for any failure of the lessee to observe any one or more of the conditions of such lease or of any of the leases; (9) that a notice in writing sent through the mails should be sufficient to terminate such leases; (10) that the lessee acknowledged the validity of the lessor's patents; (11) that no act of the lessor should waive any of the terms of the lease, unless by instrument of writing signed by its president, vice-president or treasurer; (12) that the term 'lessor' should include the company, its successors and assigns."

The facts in the instant case as shown by the proof below which the learned Springfield Court of Appeals excerpts and briefs for us run thus:

"We will briefly set forth the evidence as shown by this record. The plaintiff had in its employ a traveling salesman or solicitor whose duties required him to visit prospective customers in this State and induce them to enter into either contracts of purchase or contracts of lease. This salesman was working on a salary paid by the plaintiff and traveled in Missouri at the time this contract was made. In May, 1910, he induced the defendant Hays to enter into the contract of lease in question. It was signed by defendants (Hays and Davis) in Missouri, but was not to become a binding contract until accepted by the proper officers of the plaintiff in the State of New York. It was forwarded to New York and by the plaintiff accepted, and under its terms a linotype machine was delivered to the defendants in the city of New York. The rent, under the terms of the lease, was payable to the plaintiff in the State of New York. The evidence shows that during the first four months of the year 1910 the plaintiff entered into eleven separate and distinct contracts in this State and leased twenty-seven separate linotype machines to customers in Missouri, and these machines were all installed during the first four months of the year 1910. It further shows that between December, 1895 and January, 1910, the plaintiff leased about three hundred machines in this State, all of which were installed under substantially the same kind of a contract as the one sued on in this case. The evidence shows that the contract of lease in suit provides that the plaintiff would furnish a machinist to erect the machine, at the instance of the lessees. Also that in many cases the plaintiff had sent its machinists into this State to erect and install its machines, and that these machinists were in the employ of the plaintiff and were paid a salary by plaintiff. There is evidence that plaintiff also had in its employ operators of linotype machines who were to instruct the lessees how to operate the machine. It is shown that on May 12, 1910, the date of the contract of lease in suit, plaintiff had in force in this State forty-five other contracts similar to this one, and had forty-five other machines installed in Missouri, and that whenever requested plaintiff sent its machinists into this State to make repairs. It is also shown that in 1913, some three years after this contract was made, plaintiff procured a license to transact business in this State, one of the witnesses saying this was done to conform to the laws of Missouri. The plaintiff, during the ten years prior to the making of this contract, had machines installed in this State the total value of which was approximately $ 600,000. . . .

"Clause 4 of the lease provides that the plaintiff will furnish, at the expense of the lessees, a competent machinist to erect the machine at the place of business of the lessees and a skilled operator to instruct the lessees in its use. Clause 7 provides that the lessees will maintain the machine and its belongings in good condition and that they will at their own expense at once replace and repair all parts of the machine that become broken or damaged. The lease also provides that the lessor may inspect the machine at any time during the term of the lease, and the evidence disclosed that plaintiff did have in its employ inspectors who would go over the State inspecting its...