The Gutta Percha Manufacturing & Rubber Company v. Lehrack
| Decision Date | 16 June 1919 |
| Parties | THE GUTTA PERCHA MANUFACTURING & RUBBER COMPANY, Respondent, v. OTTO J. LEHRACK as LEHRACK CONTRACTING and ENGINEERING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
Judgment affirmed.
Charles M. Miller for respondent.
Kenneth McC. DeWeese for appellant.
Plaintiff, a corporation organized under the Laws of New York and having its home and factory in that State, brought suit in the circuit court of Jackson county, Missouri, to recover a balance of $ 239.45 due on the sale of a thirty-six inch special "conveyor" belt for installation in an elevator defendant was building for the Blair Milling Co., in Atchison, Kansas. The price of the belt was $ 1239.45 and defendant paid $ 1000 thereon but afterwards declined to pay the remainder, claiming that the belt was crooked or defective in some way.
The contention over the question of whether the belt was defective or not has been disposed of by the verdict of the jury which was in plaintiff's favor. There is, therefore nothing left in the case except defendant's contention that, at the time of the sale, September 16, 1915, plaintiff, a foreign corporation, had no license to do business in Missouri, and that consequently the suit to recover the balance due on the purchase price of the belt could not be maintained.
Was the plaintiff, in the sale of the belt in question, "doing business" in the State of Missouri in such sense as requires a license under sections 3037, 3039, 3040 and 3342, Revised Statutes 1909? If so, then the failure to have such license--which is conceded--will render a suit for the purchase price of the belt nonmaintainable, the contract being unenforceable.
For a number of years prior to the date of the sale here involved, the Kansas City Rubber and Belting Company, located in Kansas City, Missouri, had continuously, as a part of its business, handled the goods of the plaintiff and resold them in a jobbing way. During this time and continuously down to and past the date of this sale, the said Kansas City Rubber and Belting Company kept from $ 500 to $ 2000 worth of plaintiff's goods in its store and, as these were sold, others were sent to take their place. They were sold for cash or credit and the credit was extended if the Kansas City Rubber and Belting Company thought advisable. All sales of plaintiff's goods by the Kansas City Rubber and Belting Company were kept in a sepa rate ledger for that purpose. The goods kept consisted of steam hose, water hose, belting and packing and rubber goods.
The Assistant Manager of the plaintiff's Chicago office, Mr. Carter, went to defendant's office in Kansas City, Missouri, in company with Mr. Backus, the city salesman of the Kansas City Rubber and Belting Company, and there Mr. Carter quoted defendant a price on the belt in question. The defendant then and there agreed to buy the belt and signed an order therefor but, as the elevator in which it was to be used was not yet complete, the specifications for the belt were not ready, and later Backus obtained them from the defendant. The order from the defendant to the plaintiff was then sent by the Kansas City Rubber & Belting Company to the plaintiff's office at Chicago with the recommendation on it that credit be extended to the defendant for the price of the belt. The order went from there to plaintiff's New York office and the belt, a special thirty-six-inch conveyor belt, was manufactured at plaintiff's factory in Brooklyn, New York and shipped from there by plaintiff to Atchison, Kansas, where defendant installed it in the elevator being built, as heretofore stated, for the Blair Milling Company. This last named company paid the freight on the belt and charged it to defendant's account.
The bill for the belt was in the name of plaintiff against the defendant, but was made out upon stationery headed "Kansas City Rubber & Belting Co. Distributors for the Gutta Percha & Rubber Mfg. Co.," and having the Kansas City Rubber Company's Kansas City address and telephone numbers on it. Monthly statements were sent the defendant by the Kansas City Rubber & Belting Company; and agents of this company called upon defendant to collect the amount due. The $ 1000 paid by defendant was by check to the Kansas City Rubber and Belting Company which, after taking out its commission, forwarded the...
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