The Farrand Co. v. Walker
| Decision Date | 03 March 1913 |
| Parties | THE FARRAND COMPANY, Appellant, v. J. FRANK WALKER, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. A. Powell, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Fred A Boxley for appellant.
(1) The court erred in giving defendant's instruction in the nature of a demurrer to plaintiff's first count in its petition. Shoe Co. v. Ramlose, 231 Mo. 508; Blackmer v. Railroad, 101 Mo.App. 557; Kirk v Kane, 87 Mo.App. 274; Land Co. v. Tie Co., 87 Mo.App. 167; Allen v. McMonagle, 77 Mo. 478; Sherman v. Printing Co., 29 Mo.App. 31; 38 Cyc 2025. (2) The court erred in giving defendant's instruction in the nature of a demurrer to plaintiff's second count in its petition. Text Book Co. v. Gillespie, 229 Mo. 397; Text Book Co. v. Pigg, 217 U.S. Sup. 91; Engine & Mfg. Co. v. Vromania Apts. Co., 154 Mo.App. 139; Bicking v. Stevens, 69 Mo.App. 168; Page & Co. v. Sherwood, 131 N.Y.S. 322; Butler Bros. v. U. S. Rubber Co., 156 F. 1. (3) Under the law and the evidence, plaintiff was entitled to have its case submitted to the jury on the merits. Shoe Co. v. Ramlose, 231 Mo. 508; Koenig v. Boat Co., 155 Mo.App. 685. (4) The transaction between plaintiff and defendant was not in violation of sections numbered 3039 and 3040, R. S. 1909, and the court erred in so holding. Text Book Co. v. Gillespie, 229 Mo. 397; Bicking v. Stevens, 69 Mo.App. 168.
Spencer, Grayston & Spencer for respondent.
The contract contained all the elements necessary to create the relation of principal and agent and none inconsistent therewith. The business transacted thereunder was in violation of the statute and the plaintiff cannot recover. Buggy Co. v. Priebe, 123 Mo.App. 530. The interest which plaintiff acquired in the notes resulted from its violation of the statute. It had no interest in same prior thereto. There was no original title for it to assert or recover upon under its first count, which was for conversion. It could not recover under its second count for goods sold and delivered under the contract because it was not a sale. The statute disables plaintiff from suing either upon tort or contract. R. S. 1909, sec. 3040.
--The petition is in two counts but deals with only one subject-matter or transaction. The cause pleaded in the first count is in the nature of trover to recover the value of plaintiff's interest in certain promissory notes and chattel mortgages which, it is alleged, defendant wrongfully converted to his own use. The second count states a cause on contract for goods sold and delivered by plaintiff to defendant at his special instance and request. The answer contains, inter alia, a plea that at the time of the transaction in question plaintiff was a foreign corporation not licensed to do business in this State and "that all the business transacted between plaintiff and defendant . . . mentioned in plaintiff's petition was transacted . . . in violation of sections 3039 and 3040, Revised Statutes 1909, and that the contracts sued on by plaintiff are void and that the plaintiff has no right to maintain this suit."
At the close of plaintiff's evidence the court gave a peremptory instruction to the jury to return a verdict for defendant, whereupon plaintiff took an involuntary nonsuit with leave and in due course of procedure brought the case here by appeal.
Plaintiff is a corporation organized and created under the laws of Michigan and has its principal office in Detroit where it is engaged in the manufacture and sale of organs. It has not complied with the statutes relating to foreign corporations doing business in this State and the point in issue is its right to resort to our courts for the redress it seeks against defendant.
In 1899 plaintiff entered into a contract with defendant who was engaged at Joplin in the business of retail dealer in musical instruments and merchandise by the terms of which defendant was made the agent of plaintiff for the sale of organs consigned to him by plaintiff on his orders. The parties transacted business under this contract for seven years when the relation was ended by defendant. During that time defendant kept a stock of plaintiff's organs in his store and made sales therefrom, accounting to plaintiff for the proceeds of such sales. The compensation received by defendant for each sale was a commission or factorage charge fixed by him and added to the price at which the organ was billed to him by plaintiff.
Frequently sales were made on the installment plan in which case defendant would take a promissory note from the purchaser secured by a chattel mortgage on the organ and forward the note and mortgage to plaintiff. After defendant decided to terminate the agency a traveling auditor or adjuster of plaintiff called on him to make a final settlement. Defendant had accounted to plaintiff for all organs in stock and all money collected from customers, but plaintiff had on hand installment notes and mortgages which defendant had taken from customers in payment of the purchase price of organs he had sold and plaintiff's interest in these securities amounted to $ 587.38. Defendant offered to purchase plaintiff's interest in these notes for $ 300, and the adjuster accepted the offer subject to the approval of plaintiff; surrendered the notes and mortgages to defendant and received defendant's check for $ 300 which he forwarded to plaintiff, together with a statement of the conditional settlement. Plaintiff refused to ratify the agreement of the adjuster, returned the check to defendant and demanded payment of the sum of $ 587.38, or the return of the notes and mortgages. It appears that d...
To continue reading
Request your trial