Tri-State Amusement Co. v. Forest Park Highlands A. Co.

• Decision Date: 21 December 1905
• Citation: 192 Mo. 404,90 S.W. 1020
• Parties: TRI-STATE AMUSEMENT CO. v. FOREST PARK HIGHLANDS AMUSEMENT CO. et al.
• Court: Missouri Supreme Court

90 S.W. 1020

192 Mo. 404

TRI-STATE AMUSEMENT CO. v. FOREST PARK HIGHLANDS AMUSEMENT CO. et al.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

CORPORATIONS — FOREIGN CORPORATIONS — RIGHT TO DO BUSINESS — CONDITIONS — NON-PERFORMANCE — CONTRACTS — VALIDITY.

Rev. St. 1899, §§ 1024, 1025, provide that foreign corporations for pecuniary profit shall perform certain acts before being authorized to do business in Missouri, and section 1026 declares that every such corporation doing business within the state failing to comply with such conditions shall be subject to a fine, and, in addition, shall not be authorized to maintain any suit or action in any of the courts of the state on any demand whether arising out of contract or tort, etc. Held that, where a foreign corporation entered into a contract in Missouri for the furnishing of amusement in a theater without complying with such sections, the contract itself was void, and the corporation could not maintain an action for breach thereof, though prior to suit brought it performed the conditions required to entitle it to do business within the state.

Appeal from St. Louis Circuit Court; John A. Blevins, Judge.

Action by the Tri-State Amusement Company against the Forest Park Highlands Amusement Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

John D. Johnson and Virgil Rule, for appellant. E. C. Crow and Rassieur, Schnurmacher & Rassieur, for respondents.

MARSHALL, J.

It is not altogether clear whether this action is intended as a proceeding in equity for an accounting and to recover the amount found to be due, or whether it is an action at law for damages; and it is not necessary to determine the character of the action, for the result must be the same which-ever view be taken of the case. The trial court sustained a demurrer to the petition, and the plaintiff appealed.

The material allegations of the petition are that the plaintiff company is a corporation organized under the laws of the state of Illinois; that on the 5th of April, 1898, the defendant company had a leasehold interest in and to certain real estate situated in the city of St. Louis, and lying just south of Forest Park, on which it maintained a pleasure resort, with pavilion, theatre, stage, and other buildings, used for giving theatrical performances; that the stage faced the pavilion and the latter was surrounded by a railing, in which were more than 1,000 seats for persons attending the performance, and which are hereafter referred to as "reserved seats"; that back of the reserved seats there was an open space for chairs for like purposes, but without being inclosed with a railing; that on the 5th of April, 1898, the plaintiff entered into a written contract with the defendant company and one John D. Hopkins, by which the defendant company agreed to furnish to the plaintiff the pavilion, theatre, and reserved seats for the purpose of giving theatrical performances therein, beginning on the 2d of May, 1898, and expiring 15 weeks thereafter, the performances to be daily performances, with Wednesday, Saturday, and Sunday matinees; that the plaintiff was to furnish the performances, do certain advertising, and to receive the 25 cents per person paid for admission to the reserved seats, and one-half of the 10 cents per person charged for admission to the unreserved seats, and, if the amount so received by plaintiff did not equal $1,200 per week, the defendant was to make up the deficit; that settlements on account of the 25 cents admission should be made each Tuesday, and the settlements for the one-half of the 10 cent admissions were to be made daily; that the defendant Hopkins was to act as manager of the theatrical performances, and that the defendant company was to have the right to sell wines, liquors, and other refreshments any-where on the grounds, including the space set apart for reserved seats; that, pursuant to the contract, plaintiff company entered upon the performance thereof and gave theatrical performances at the times specified until on or about the 10th of September, 1898, when the defendant company refused to allow the plaintiff company to further perform the conditions of the agreement, and has ever since so refused; that the defendant company knew, when it entered into the contract, that the agreement between plaintiff and said Hopkins was that the plaintiff was to pay all the expenses incident to the contract on its part and be entitled to all the profits realized therefrom, and that thereafter, to wit, on August 29, 1898, for a valuable consideration, Hopkins sold and assigned to the plaintiff all of his interest in said contract. The petition then charges that the defendant company was guilty of a breach of its contract on the 10th of September, 1898, by refusing to allow the plaintiff to carry out the contract, and by entering into an agreement with the defendant Hopkins for the purpose of collusively and fraudulently ousting and excluding plaintiff from the premises, and preventing it thereafter from giving theatrical performances, and further agreed with Hopkins to give such performances itself under the directions and management of Hopkins. It is further stated that the plaintiff is unable to state the profits realized by the defendants from the performances given after the 10th of September, 1898; but it is averred on information and belief that the profits amounted to $30,000, and that the plaintiff has been denied that sum. The prayer of the petition is that an accounting be taken and that plaintiff have judgment against the defendants for the damages so ascertained. The petition further alleges that the contract was to last during the whole term of the lease that the defendant company had on the premises, which would expire on the 4th day of March, 1903. The suit was instituted on the 16th day of August, 1899. The petition further alleges that on the 14th of April, 1899, it complied with the laws of this state governing foreign corporations, and was duly authorized by the laws of this state to do business in this state. The defendants demurred to the petition on three grounds, to wit: (1) Because the petition does not state facts sufficient to constitute a cause of action. (2) Because the petition does not state facts sufficient to entitle plaintiff to any equitable relief. (3) Because there is a defect of parties plaintiff, in this: that Hopkins was not made a plaintiff in the action.

The decisive question in this case for determination is as to the validity of the contract upon which the action is based. The plaintiff is a nonresident corporation. At the date of the contract it had not complied with the laws of this state regulating the right of foreign corporations to do business in this state. It transacted business in this state under the contract from the 22d of May until the 10th of September, 1898. During that time it never complied with the laws of this state relating to foreign corporations. Before the institution of this suit, to wit, the 14th of April, 1899, the plaintiff complied with the laws of this state. The question, therefore, is whether such compliance before suit brought, but after the contract was entered into and after the plaintiff had transacted all of the business under the contract until prevented from further doing so by the defendant, affects the validity of the contract as to the business done and to be done, or whether it only affects the remedy. The question under consideration must be determined upon a construction of the act of 1891 (Acts 1891, p. 75), now sections 1024, 1025 and 1026, Rev. St. 1899. Section 1024 provides, in substance, that every corporation for pecuniary profit formed in any other state, territory, or country, "before it shall be authorized or permitted to transact business in this state, or to continue business therein if already established, shall have and maintain a public office or place in this state for the transaction of its business, where legal service may be obtained upon it, and where proper books shall be kept to enable such corporation to comply with the constitutional and statutory provisions governing such corporation; and such corporation shall be subjected to all the liabilities, restrictions and duties which are or may be imposed upon corporations of like character organized under the general laws of this state, and shall have no other or greater powers," etc. Section 1025 provides that "every company incorporated for purposes of gain under the laws of any other state, territory or country, now or hereafter doing business within this state, shall file in the office of the Secretary of State a copy of its charter or articles of incorporation, or, in case such company is incorporated merely by a certificate, then a copy of its certificate of incorporation, duly certified and authenticated by the proper authority; and the principal officer or agent in Missouri of said corporation shall make and forward to the Secretary of State with the articles or certificate aforesaid, a statement, duly sworn to, of the proportion of the capital stock of the corporation which is represented by its property located and business transacted in this state, and the corporation shall pay into the treasury of this state upon the proportion of its capital stock represented by its property and business in Missouri, incorporating taxes and fees equal to those required of similar corporations formed within and under the laws of this state." It further provides that, "upon compliance with the above provisions by said corporation, the Secretary of State shall give a certificate that said corporation has duly complied with the laws of this state, and is authorized to do business therein, stating the amount of its entire capital and of the proportion thereof which is represented in Missouri," etc. The section contains other provisions not necessary to be referred to here....