Superior Concrete Accessories v. Kemper
| Decision Date | 14 November 1955 |
| Docket Number | No. 44415,No. 2,44415,2 |
| Citation | 314 Mo. 288,284 S.W.2d 482 |
| Parties | SUPERIOR CONCRETE ACCESSORIES, Inc., Respondent, v. Merie E. KEMPER, doing business as Merie E. Kemper Company and Merle E. Kemper-Superior Company, a Corporation, Appellants |
| Court | Missouri Supreme Court |
Roy P. Swanson, Richard G. Poland, Kansas City, for appellants. Blackmar, Swanson, Midgley, Jones & Eager, Kansas City, of counsel.
James C. Wilson, Colvin A. Peterson, Jr., Kansas City, for respondent. Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
STOCKARD, Commissioner.
This is a suit for a declaratory judgment. The questions on this appeal are whether respondent, as a foreign corporation not licensed in Missouri, has the right to maintain this suit, and if so, whether it has the right to terminate unilaterally a contract between it and the appellants.
On June 24, 1941, Merle E. Kemper, doing business as Merle E. Kemper Company (hereafter referred to as 'Kemper') entered into a distributor's sales agreement with Superior Concrete Accessories, Inc., an Illinois corporation, the predecessor of the respondent herein. In 1948 Merle E. Kemper, his wife and another person formed a corporation under the laws of Missouri by the name of Merle E. Kember-Superior Company (hereafter referred to as Kemper-Superior). The distributor's sales agreement 'was sold' to Kemper-Superior, but the ownership of stock of Kemper-Superior by those other than Kemper was nominal and no material change resulted in the methods of operation.
From the declaratory judgment that the distributor's sales agreement 'is hereby terminated and cancelled' the appellants have appealed. The relief sought is not a money judgment, but the only basis for jurisdiction in this court is the amount in dispute. The applicable rule is that when the object of the suit is to obtain other than a money judgment the amount in dispute must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied. Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149; National Surety Corporation v. Burger's Estate, Mo.Sup., 183 S.W.2d 93; Juden v. Houck, Mo.Sup., 228 S.W.2d 668. It affirmatively appears from the record that the money value of the loss to the appellants, should the relief requested by respondent be granted, would be in excess of $7,500 exclusive of interest and costs. Jurisdiction is in this court.
Section 351.570 () provides that a foreign corporation organized for profit shall, before it 'transacts business' in this state, procure from the Secretary of State of Missouri a certificate of authority to do so. Section 351.635 provides that no foreign corporation 'doing business' in this state which has failed to procure the required certificate of authority 'can maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of the contract or tort, while the requirements of this chapter have not been complied with.'
Respondent is engaged in the business of manufacturing, distributing and selling, among other things, steel products for use in and in connection with concrete construction work. Its plant and offices are located in Chicago, Illinois. Pursuant to the distributor's sales agreement, Kemper takes orders in respondent's name for merchandise in Oklahoma, Kansas and Western Missouri, his exclusive territory, and sends the orders to respondent's office in Chicago, Illinois, where respondent fills them by shipping the merchandise directly to the purchaser. Respondent bills the purchaser and is responsible for making collections, although Kemper stated that at times he assisted in some collections.
The distributor's sales agreement requires that Kemper maintain, at his sole expense, a warehouse for consigned stock. Before the contract was assigned to Kemper-Superior he maintained a warehouse at the Adams Storage & Transfer Co. in Kansas City, Missouri, and the consigned stock was stored there in Kemper's name. After Kemper assigned the contract to Kemper-Superior, the warehouse was maintained by Kemper-Superior in a building owned by Kemper and his wife. The consigned stock was shipped to Kemper f. o. b. Chicago.
In addition to the merchandise on consignment from respondent, Kemper also kept in his warehouse what he called 'service items' and he handled and warehoused products other than those of respondent, at least one of which he manufactured himself and which was an item competitive to respondent's products. The record is indefinite concerning sales of products from the warehouse. Kemper testified that when he made a profit on a sale of a product of respondent, 'I sell it for myself,' but that when he sold a service item at no profit he sold it 'as an agent for Superior.' He also testified that he acted as 'distributors, independent purchasers and buyers for our own account for Superior products,' and that the 'Merle E. Kemper Company buys and sells' respondent's products. Kemper maintained his own office at his sole expense and he employed salesmen whose salaries he paid without reimbursement from respondent. The billing arrangement on sales made by Kemper is not clear. Kemper stated:
Kemper admitted that he had testified correctly in a previous lawsuit between the same parties that he never made reports to respondent as to what customers he had solicited or what territory he traveled or where he operated; that respondent had asked for such reports but that he had replied that he was not subject to its regulations as to where he went or what his business activities were; that he operated independently and that respondent had no authority to tell him what to do or where to go; that he was not subject to any supervision of respondent as to the prices at which he sold Superior products; and that after he bought the merchandise of respondent he sold it for the price he felt was right.
The record is not as clear as it might be, but from the above it appears that Kemper carried on three separate and distinct operations. He solicited orders for respondent's products and sent the orders to respondent in Chicago to be filled by direct shipment to the purchaser; he bought and sold respondent's products on his own account; and he sold those products of respondent which he had on consignment in his warehouse.
The solicitation of orders for goods within a state by a foreign corporation through a resident broker or commission merchant who maintains a local office at his own expense, and the shipments of goods by the foreign corporation into the state directly to the purchasers pursuant to such orders, constitute business in interstate commerce, and does not constitute doing business within the state so as to subject the foreign corporation to local statutes prescribing conditions for doing business within the state. Yarbrough v. W. A. Gage & Co., Inc., 334 Mo. 1145, 70 S.W.2d 1055; Yerxa, Andrews & Thurston, Inc., v. Randazzo Macaroni Mfg. Co., 315 Mo. 927, 288 S.W. 20; Hess Warming & Ventilating Co. v. Burlington Grain Elevator Co., 280 Mo. 163, 217 S.W. 493; Security State Bank v. Simmons, 251 Mo. 2, 157 S.W. 585; International Text-Book Co. v. Gillespie, 229 Mo. 397, 129 S.W. 922, General Excavator Co. v. Emory, Mo.App., 40 S.W.2d 490; Republic Steel Corporation v. Atlas Housewrecking & Lumber Corporation, 232 Mo.App. 791, 113 S.W.2d 155; J. B. Colt Co. v. Watson, 215 Mo.App. 467, 247 S.W. 493. See also annotations on this subject at 60 A.L.R. 994 and 101 A.L.R. 126.
It is obvious that under the circumstances of this case the acts of respondent in selling its products at a discount and shipping them to appellants who in turn sold the products at a profit to the ultimate user did not constitute doing business in this state by respondent. This is the usual wholesaleretail arrangement. Therefore, if respondent is illegally doing business in this state it is by reason of the relationship between respondent and appellants in the operation of that part of the business done by appellants in warehousing and selling merchandise owned by respondent and in the possession of appellants on consignment.
Under the terms of the agreement the relationship between respondent and appellants concerning the merchandise on consignment was that of principal and factor. Butler Bros. Shoe Co. v. United States Rubber Co., 8 Cir., 156 F. 1. Such relationship, without more, does not make the factor that type of an agent of the foreign corporation which results in the factor conducting the business of the foreign corporation in the state where the sales take place. International Text-Book Co. v Gillespie, supra; Yarbrough v. W. A. Gage & Co., Inc., supra; Dinuba Farmers' Union Packing Co., Inc., v. J. M. Anderson Grocer Co., 193 Mo.App. 236, 182 S.W. 1036; General Excavator Co. v. Emory, supra; Republic Steel Corporation v. Atlas Housewrecking & Lumber Corporation, supra; 60 A.L.R. 994, at page 996; 101 A.L.R. 126, at page 129; Harrell v. Peters Cartridge Co., 36 Okl. 684, 129 P. 872, 44 L.R.A.,N.S., 1094; L.R.A. 1916F, 334. However, if there is in fact such interference with the business of the factor by the foreign corporation as to show that the business he is carrying on is that of the foreign corporation, then the foreign...
To continue reading
Request your trial
-
Aaron E. Levine & Co., Inc. v. Calkraft Paper Co.
...L.Ed. 882 (1891); Florida-Georgia Chemical Co. v. National Laboratories, Inc., Fla.App., 153 So.2d 752 (1963); Superior Concrete Accessories v. Kemper, Mo., 284 S.W.2d 482 (1955). The Uniform Commercial Code is in accord with these decisions. Section 2-309(2) "Where the contract provides fo......
-
Plaskitt v. Black Diamond Trailer Co.
...contracts, Williston cites Foster-Porter Enterprises, Inc. v. DeMare, 198 Md. 20, 81 A.2d 325 (1951); Superior Concrete Accessories, Inc. v. Merle E. Kemper, 284 S.W.2d 482 (Mo.1955).5 As authority for the statement in the text, Williston cites: Willcox & Gibbs Sewing Machine Co. v. Ewing, ......
-
Red-E-Gas Co. v. Meadows
...Kick v. Doerste, 45 Mo.App. 134, 140-141(4); Flynt v. Chicago, B. & Q. Ry. Co., 38 Mo.App. 94, 98(2).7 Superior Concrete Accessories v. Kemper, Mo., 284 S.W.2d 482, 490(16); Staroske v. Pulitzer Pub. Co., 235 Mo. 67, 77, 138 S.W. 36, 39(6). See also Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d......
-
Filmakers Releasing Organization v. Realart Pictures of St. Louis, Inc.
...Facts. The burden of proof is on the defendants to establish that the plaintiff was doing business in this state. Superior Concrete Accessories v. Kemper, Mo., 284 S.W.2d 482; United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, 109 S.W. 567; State ex rel. Hays v. Robertson et al., 271 Mo. 47......
-
Franchise Termination Restrictions: A Guide for Practitioners and Policy Makers
...Florida-Georgia Chemical Co. v. National Laboratories,Inc., 153 So. 2d 752 (Fla. App. 1963); Superior Concrete Accessories v.Kemper, 284 S.W.2d 482 (Mo. 1955); and Uniform Commercial Code§2-309(2)].See also Alpha Distributing Co. v. Jack Daniel Distillery, 454 F.2d442 (9th Cir. 1972); Meado......