The Trower Brothers Co. v. Hamilton

• Decision Date: 15 January 1904
• Citation: 77 S.W. 1081,179 Mo. 205
• Parties: THE TROWER BROTHERS COMPANY, Appellant, v. HAMILTON
• Court: Missouri Supreme Court

77 S.W. 1081

179 Mo. 205

THE TROWER BROTHERS COMPANY, Appellant, v. HAMILTON

Supreme Court of Missouri, Second Division

January 15, 1904

Appeal from Nodaway Circuit Court. -- Hon. Gallatin Craig, Judge.

Reversed and remanded.

Lathrop Morrow, Fox & Moore for appellant.

(1) The court erred in holding that the description of the cattle in the mortgage was not sufficient. 5 Am. and Eng. Ency. Law (2 Ed.), 956; Jones on Chattel Mortgages (3 Ed.), sec. 53; 1 Cobbey on Chattel Mortgages, sec. 188; Elliott v Long, 77 Tex. 467; Interstate Galloway Cattle Co. v McLane, 42 Kan. 680; Jones v. Workman, 27 N.W. 158; Bank v. Bank, 19 S.W. 517; Bank v. Taylor, 98 Iowa 631; Holmes v. Commission Co., 81 Mo.App. 97; Bank v. Ragsdale, 158 Mo. 668; Kenyon v. Framel, 28 N.W. 37; State v. Cabanne, 14 Mo.App. 294; Corbin v. Kincaid, 33 Kan. 652; McVey v. English, 30 Kan. 368; Wilson v. Lillie, 20 Oh. 166; Frick v. Fritz, 88 N.Y. 961; Barton v. Sitlington, 128 Mo. 173; Drug Co. v. Self, 77 Mo.App. 284. (2) The note in controversy was not usurious according to the laws of Kansas. State v. Elliot, 61 Kan. 519. (3) The note and mortgage constitute a Kansas contract, and being enforcible by the laws of Kansas are valid and enforcible in this State, notwithstanding section 3710, Revised Statutes 1899. Cravens v. Ins. Co., 148 Mo. 584; DeWolf v. Johnson, 10 Wheat. 367; Andrews v. Pond, 13 Pet. 65; Cribben v. Dehoney, 69 S.W. 312; Stanley v. Railroad, 100 Mo. 435; Bowman v. Miller, 25 Gratt. 331; Sawyer v. Dickson, 48 S.W. 903; Vermont Loan & Trust Co. v. Dygert, 89 F. 123; Coghlan v. Railroad, 142 U.S. 109; Kuhn v. Morrison, 75 F. 81; Bank v. Cooper, 85 Mo.App. 383; Hamilton v. Fowler, 99 F. 18; Bank v. Young, 37 Mo. 407; Keim v. Vette, 167 Mo. 401; sec. 547, R. S. 1899. (4) If it should be held that the Missouri statute had any extraterritorial force, and was sufficient to invalidate a mortgage given as security to a Kansas contract, it would be invalid under the fourteenth amendment of the Federal Constitution. Allegyer v. Louisiana, 165 U.S. 578; Bedford v. Loan Association, 181 U.S. 241. (5) Plaintiff having complied with the law governing foreign corporations at the time of the trial, it is immaterial that it had not done so when the suit was brought. Carson-Rand Co. v. Stern, 129 Mo. 381.

W. C. Ellison for respondent.

(1) The note secured by the mortgage was unquestionably usurious under the laws of both Kansas and Missouri. (2) The mortgagor being domiciled in this State and the mortgage being on movables located in the State, to secure a Kansas note, usurious by the laws of both States, section 3710, Revised Statutes 1899, applies. Our statutory regulations of mortgages of personal property, within the jurisdiction of the State, apply, regardless of the domicile of the owner or the lex loci contractus. Bank v. Cassiday, 71 Mo.App. 196; Jones on Chattel Mortgages (4 Ed.), sec. 305; Ames Iron Works v. Warren, 76 Ind. 512; Dearing v. McKinnon, 165 N.Y. 78; Pleasanton v. Johnson, 91 Md. 637; Meares v. Finlayson (S. C.), 32 S.E. 986; Green v. Van Buskirk, 7 Wall. 139; Clark v. Tarbell, 58 N.H. 88. (3) Appellant is a foreign corporation, doing a general business in this State, and up to the commencement of this suit had not complied with the statutory provisions permitting it to do business here. The chattel mortgage is therefore void. The facts of the case relating to this proposition are, that appellant was incorporated in Kansas in January, 1899. Their principal office was located in the Exchange building at the Kansas City stockyards, through which building the dividing line between the States runs. A large portion, if not most of its business was done in Missouri, at Kansas City and in Saint Joseph, at which latter place it had a branch office. The business included the buying and selling of cattle for customers and the taking of notes and mortgages, such as are in this case. Certificate from the Secretary of State, as required by section 1025, Revised Statutes 1899, was not obtained until a month or so after the case at bar was commenced. At the trial it was admitted that no application for a license to do business in this State was made prior to the bringing of the suit, but the statute was complied with before the trial. Before the chattel mortgage could become operative, as to respondent, it was necessary for appellant to, and it did take, the mortgage to the county of the mortgagor's residence and there recorded it. This act was necessary to make the mortgage a completely executed instrument, so to speak, as against respondent. Thus it is seen that we have an instrument whose execution was perfected in Missouri, on property having its situs in Missouri, and which secured the performance of a contract (in so far as it related to the commission and the sale of the cattle) that was to be wholly performed in Missouri. One of the principal objects of requiring foreign corporations to obtain a certificate authorizing them to do business in this State, was to force the payment of incorporating taxes and fees equal to those required of similar corporations formed within and under the laws of this State. If the statute referred to is to be so construed that foreign corporations doing business in the State may comply with the law and avoid the penalties thereof after a suit has been commenced, they will thereby be encouraged never to comply with the law until the necessity for it arises, and thus within the State's own jurisdiction they would be favored above similar home corporations. Ehrhardt v. Robertson Bros., 78 Mo.App. 404; CarsonRand Co. v. Stern, 129 Mo. 381. (4) The court was right in holding that the description of the cattle in the mortgage was not sufficient. Furniture Co. v. Davis, 76 Mo.App. 512; Mackey v. Jenkins, 62 Mo.App. 618; Jones Bros. v. Long, 90 Mo.App. 618.

OPINION

In Banc.

BURGESS J.

The following opinion heretofore rendered in Division Two is hereby adopted as the opinion of the Court in Banc.

All concur.

BURGESS, J. -- This is an action of replevin for the possession of sixty-seven head of cattle. Plaintiff obtained possession of the cattle under the order of delivery, sold them, and had the proceeds arising from their sale at the time of the trial. The judgment of the lower court was against the plaintiff and its sureties on the replevin bond given in the case for the value of the property, and damages amounting to $ 1,400.80, from which plaintiff appeals.

The petition is in the usual form. The answer is, first, a general denial, then proceeds as follows:

"This defendant further answering, says that all the cattle and stock taken from him and his possession under and by virtue of the writ of replevin issued in said cause, were purchased by defendant on the 7th day of February, 1900, at Kansas City, in said State, of the Chicago Live Stock Commission Company, who was then and there in possession and the apparent owners of said stock and cattle; that defendant then and there purchased said cattle and stock in good faith and for value, to-wit, two thousand dollars, then and there paid by defendant to said commission company, and without having any notice of any kind whatever of plaintiff's alleged claim or demand on said stock or cattle, and defendant had and retained the possession of said stock and cattle as the true and legal owner thereof from the time of his purchase aforesaid until taken under the writ of replevin aforesaid. This defendant further states that he is the owner of said cattle and stock and demands judgment for the return thereof to him.

"Further answering, this defendant says that the alleged chattel mortgage and note mentioned in the petition were and are usurious in that they exact and embrace interest more than at the rate of eight or ten per cent per annum, contrary to and in violation of the laws of the State of Missouri and of Kansas then and at the time in force.

"Further answering, this defendant says and admits that plaintiff is and at the date of the execution of said chattel mortgage, and for more than a year prior thereto, was a corporation for gain and pecuniary profits organized and incorporated under and by virtue of the laws of the State of Kansas; that said plaintiff has never maintained or kept a public office in the State of Missouri, or any other office; that the plaintiff at any of the dates or time referred to in the petition did not file in the office of the Secretary of State for the State of Missouri a copy of its charter or articles of incorporation or a copy of its certificate of incorporation duly certified by any officer or person, and did not at any time through any of its officers or agents forward to said Secretary of State any sworn or other statement relating to its stocks or business, and did not at any time pay any incorporation tax or other tax to the State of Missouri, and said plaintiff at no time aforesaid received from any officer of the State of Missouri a certificate as provided in section 1025 of the Revised Statutes of Missouri that during all the times aforesaid, the plaintiff not being a railway corporation, was and is doing a regular business in the State of Missouri, and in its business aforesaid took the mortgage and notes secured thereby mentioned in the petition and in violation of law. Wherefore, defendant says said mortgage and surety are void and the property described in said mortgage is not subject to the provisions thereof as against this defendant."

Plaintiff replied as follows:

"Comes now the said plaintiff, and for reply to the amended answer of the said defendant herein filed, says:

"It admits that the cattle in controversy herein were purchased by said defendant from the Chicago Live Stock Commission Company at ...