Tri-State Amusement Company v. Forest Park Highlands Amusement Company
| Decision Date | 21 December 1905 |
| Citation | 90 S.W. 1020,192 Mo. 404 |
| Parties | TRI-STATE AMUSEMENT COMPANY, Appellant, v. FOREST PARK HIGHLANDS AMUSEMENT COMPANY et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon John A. Blevins Judge.
Affirmed.
John D Johnson and Virgil Rule for appellant.
(1) Our laws prescribing conditions upon which foreign corporations are authorized to transact business in this State do not render contracts void, made by a non-complying corporation under the terms of which business is to be transacted in this State. R. S. 1899, secs. 1024-5-6; Chicago, etc., Co. v. Sims, 101 Mo.App. 578; Hogan v. City, 176 Mo. 149; Carson-Rand v. Stern, 129 Mo. 381; Ins. Co. v. Railroad, 149 Mo. 178; Columbus Co. v. Walsh, 18 Mo. 230; Clark v. Ins. Co., 19 Mo. 54; Fritts v. Palmer, 132 U.S. 282; Ins. Co. v. Rigers, 47 P. 848; Jarvis-Conklin v. Wilhoit, 48 F. 514; Utterly v. Mining Co., 4 Colo. 369; Kindell v. Beck, 19 Colo. 310; Pech. Mfg. Co. v. Graves, 6 S. Dak. 504; Ins. Co. v. Overholt, 4 Dill. 287; Am. Loan Co. v. Railroad, 37 F. 242; Rogers, etc., Co. v. Simmons, 155 Mass. 259; Behler v. Ins. Co., 68 Ind. 347; Ins. Co. v. Wellman, 69 Ind. 413; Jarvis v. Willheit, 84 F. 516; Buffalo Zinc Co. v. Crump (Ark.), 69 S.W. 575; Chat. R. Co. v. Evans, 66 F. 809; Security Co. v. Elbert, 153 Ind. 198; State Mut. v. Brinkley, 61 Ark. 1; Dearborn v. Augustine, 5 Wash. 67; Whitman v. Strand, 8 Wash. 647; Edison Co. v. Railroad, 8 Wash. 370; North W. Mut. Co. v. Overholt, 4 Dill. 287; King v. Nat. Min. Co., 4 Mont. 1; Garfield v. Hammer, 6 Mont. 53; Washburn Mill Co. v. Bartlett, 3 N.D. 138; People v. Hawkins, 106 Mich. 479; American Co. v. East Co., 37 F. 242; Wright v. Lee, 2 S.D. 596; Ganser v. Ins. Co., 34 Minn. 372; The Manistee, 5 Biss. 381; Pennypacker v. Capital Co., 80 Ia. 56; Phoenix Co. v. Penn. Co., 33 N.E. 970; Toledo Co. v. Thomas, 33 West Va. 566; Germania Co. v. Curran, 8 Kan. 1; Rockford Co. v. Rogers, 47 P. 848; 5 Thompson, Corp., sec. 757. (2) Compliance with the law subsequent to the date of a contract gives the company a right of action; and this, too, when the law contains the provision that a non-complying corporation cannot maintain an action. Cases supra; Dearman Foundry Co. v. Augustine, 5 Wash. 57; Huttig Mfg. Co. v. Hotel Co., 6 Wash. 122; Goddard v. Crefeld Mills, 21 C. C. A. 530; Simplex Dairy Co. v. Cole, 86 F. 739; Eastern B. & L. v. Bedford, 88 F. 7; Gas Pipe Co. v. Connell, 33 N.Y.S. 482; Toledo Tie Co. v. Thomas, 33 W.Va. 566; Wood Mowing Co. v. Colwell, 54 Ind. 270; Sing. Co. v. Brown, 64 Ind. 548; Daly v. Ins. Co., 64 Ind. 1; Western Mills Co. v. Cooper, 34 P. 774; National v. Pursell, 92 Mass. 251. (3) Respondents having contracted with appellants, are estopped from questioning appellants' legal capacity to transact business in the State. La France Co. v. Mt. Vernon, 37 P. 287; Savings Co. v. Elbert, 153 Ind. 198; West. Land Co. v. Railroad, 161 Mo. 604; 4 Thomp. Corp., sec. 5275; 4 Am. and Eng. Ency. Law, 198-9, n. 1; 2 Morawetz, Corp., secs. 750-53; 1 Beach, Corp., sec. 13.
E. C. Crow and Rassieur, Schnurmacher & Rassieur for respondents.
A foreign corporation which is engaged in transacting business in this State, without having complied with our laws respecting foreign corporations, cannot enforce an executory contract growing out of such unlawful business. The cause of action is void. A subsequent compliance with our statutes will not legalize such a transaction. McCanna v. Trust Co., 24 U.S.C. C. A. 11 and note p. 13; In re Comstock, 3 Sawy. 218; U. S. Rubber Co. v. Shoe Co., 132 F. 198; Heilman Brg. Co. v. Peimeisl, 85 Minn. 121; Ins. Co. v. Harvey, 11 Wis. 394; Assur. Co. v. Rosenthal, 55 Ill. 85; Hoffman v. Banks, 41 Ind. 1; Dudley v. Pinckard, 87 Ala. 431; Bank v. Page, 6 Ore. 431; Thorne v. Ins. Co., 80 Pa. St. 15; Lumber Co. v. Thomas, 92 Tenn. 587. A contract entered into in violation of statute is void. Downing v. Ringer, 7 Mo. 585; St. L. F. Assn. v. Carmody, 151 Mo. 573;; Live Stock Assn. v. Cass L. & C. Co., 138 Mo. 406; State ex rel. v. Dallas Co. Ct., 72 Mo. 331. No estoppel can be urged against the other contracting party who refuses to perform while the illegal contract is still executory. Wood v. Kansas City, 162 Mo. 311; Nichols v. Bank, 55 Mo.App. 81.
OPINION
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 whichever 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, theater, 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 one thousand 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, theater and reserved seats for the purpose of giving theatrical performances therein, beginning on the 2nd of May, 1898, and expiring fifteen 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 twenty-five cents per person paid for admission to the reserved seats, and one-half of the ten 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 twenty-five cents admission should be made each Tuesday, and the settlements for the one-half of the ten 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 anywhere 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 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 fourth 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.
I.
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 non-resident 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 22nd of...
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