Viking Equipment Co. v. Central Hotel Co.
| Decision Date | 27 January 1936 |
| Parties | VIKING EQUIPMENT COMPANY, APPELLANT, v. CENTRAL HOTEL COMPANY ET AL., RESPONDENTS |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Cole County.--Hon. Nike G. Sevier Judge.
AFFIRMED.
Judgment affirmed.
Blair & Blair, James T. Blair, Jr., Fordyce, White, Mayne & Williams and R. E. LaDriere for appellant.
Ira H Lohman and H. P. Lauf for respondent, Jefferson City Realty Co.
James P. Aylward, James A. Waechter and Frank P. Aschemeyer for respondent, Continental Life Ins. Co. and R. Emmett O'Malley.
--Plaintiff, a Michigan Corporation, on October 8, 1932, brought this suit in equity against the Central Hotel Company, Inc., the owner of Central Hotel in Jefferson City, Missouri, wherein, as assignee of a contract, made on the 4th day of January, 1927, by the said Hotel Company and its President, with J. B. Wilson, a resident of Missouri, to enter into a contract (and agreed to guarantee its execution) with a reliable sprinkler construction company, to erect and equip said hotel with a "wet pipe system of automatic sprinklers," it to furnish all labor and material and everything necessary to put the same in efficient working order, and when completed, to be subject to the approval and acceptance of the Missouri Inspection Bureau, all for the sum of $ 15,874, the first payment of $ 3000 thereon to be made as soon as the equipment was approved by said bureau, and the other payments to be represented by notes of $ 268 each payable monthly in the next forty-eight ensuing months from the date of first payment. On payment of all installments, the equipment would become the property of the Central Hotel Company, Inc. Until full payment be made, the sprinkler equipment should remain the property of said J. B. Wilson. And in case of failure to pay any installment when due, the entire indebtedness should become due, and, in that event, said Wilson should have the right to enter the said building in which the said sprinkler was installed and take out, without legal process, said equipment, and proceed to sell the same as in foreclosure, and apply the proceeds to the unpaid balance due, and apply the remainder, if any, as in matters of foreclosure required.
Alleging that the Central Hotel Company, after paying $ 12,380, leaving thirteen notes with eight per cent interest after maturity, it set up that there was still owing $ 3,484 and eight per cent interest from maturity (and also the facts whereby the other parties were defendants), and then the plaintiff prayed for a judgment or decree foreclosing its lien on the aforesaid system of wet pipe sprinklers.
It appears that the defendant, Jefferson City Realty Company, became the purchaser of the hotel property after the Central Hotel Company had been foreclosed under a second deed of trust given by it. The defendant, LeRose Operating Company was, under a lease from the owner, Jefferson City Realty Company, operating the hotel at the time this suit was brought.
The defendant, the Continental Life Insurance Company, was the owner of the first deed of trust on the hotel, executed prior to the making of the contract herein under consideration. The defendant, R. Emmett O'Malley, Superintendent of Insurance of the State of Missouri, was in charge of the Continental Life Insurance Company as an insolvent, with title to all of its assets including the notes secured by said first deed of trust, under a decree of the Circuit Court of the City of St. Louis entered May 25, 1934. Each of these three named defendants filed amended answers to plaintiff's second amended petition on which this case was submitted, in which answers they charge that plaintiff, admitted to be a Michigan Corporation, has been doing business in Missouri without license, and is, therefore, without capacity to sue. Defendant O'Malley also set up that the automatic sprinkler device and equipment cannot be removed from the building without substantial injury and damage to it and materially and substantially decreasing the value of O'Malley's security and impairing the lien of the aforesaid deed of trust.
After a hearing and trial before the chancellor on October 4, 1934, the case was taken under advisement until November 23, 1934, when the chancellor, on said last named date, rendered judgment, finding the issues for defendants and against the plaintiff; and dismissed the bill or suit, with costs adjudged against the plaintiff. Plaintiff, in due and proper time, appealed.
It is shown by the evidence that the Viking Automatic Sprinkler Company was the ("reliable sprinkler construction company") which J. B. Wilson selected as the one with whom he agreed to enter into a contract for erecting and installing the hotel's "wet pipe system of automatic sprinklers," (not the Viking Equipment Company, the plaintiff herein) was a Missouri corporation, organized November 15, 1924, but dissolved January 14, 1930. Its stockholders were John B. Wilson, owning five shares, Allen Johnson, owning forty-two shares, and three others owning one share each. Plaintiff, the "Viking Equipment Company," was never licensed to do business in Missouri.
J. B. Wilson, witness for plaintiff, testified that he was unemployed at the time of the trial; that in 1927 he was the president of the Viking Automatic Sprinkler Company of Missouri. He identified the contract made by him with the Central Hotel Company, dated January 4, 1927, and said that it was recorded, as in the petition alleged, on January 22, 1927, with the Recorder of Deeds of Cole County, Missouri. Witness further stated that the Hotel Company sprinkler system was installed by his company, the Viking Automatic Sprinkler Company, the Missouri corporation. He testified that the Viking Equipment Company (the plaintiff herein) financed the installation. He assigned his interest in the contract to it for advancing the money, and he said he assigned, "without recourse," the notes received under the contract, to the plaintiff company. Witness further testified he purchased the sprinkler system from a concern in Michigan and when asked its name, said "I believe it was the Viking Equipment Company." He said that in his opinion, the sprinkler system could be removed without substantial damage to the hotel property.
On cross-examination, witness said that, with reference to the assignment of the contract, he dealt with Mr. Johnson (owner of forty-two shares of the Viking Automatic Sprinkler Company, organized as heretofore stated, November 15, 1924, and dissolved January 14, 1930), and that Johnson lived at Hastings, Michigan. He did not know when the contract was completed; the installment of a system, like the one in question, would take "any time under six months." Witness also said he assigned the contract for the erecting, equipping and installation of the sprinkler system in the hotel, to the Viking Equipment Company January 18, 1927, and said contract was accepted by that company on January 19, 1927. He was unable to say why the notes were not accepted until August, 1927. The contract itself was introduced in evidence, and had a notation thereon that it was accepted by the plaintiff, "Viking Equipment Company by E. A. Johnson, Hastings, Michigan" on January 19, 1927, and below this appears on the document
Witness, Wilson, described how the sprinkler system was installed in the hotel, i. e. by the use of exposed pipes in every room, with four inch supply pipes running through the floors and ceilings, there being at least three pipe holes in every room. The fasteners were attached to the ceiling by means of screws where the ceiling is plastered, and in attic and basements, to the joists. There are also some pipes in certain closets, concealed above a false ceiling. The removal of the pipes would leave holes in the walls, floors and ceilings and where screws would be removed.
Mr. Levy, manager of the hotel for the leaseholder thereof, the LeRose Operating Company, after testifying to the way the sprinkler system was installed and the character of the installation, said that, in his opinion, to remove the pipes and the sprinklers, would work a substantial injury to the building as a hotel.
No instructions, or declarations of law, were asked or given, and as heretofore stated, the court "found for defendants and against the plaintiff."
Although there are fourteen "assignments of error" in appellant's brief, only two propositions are presented. First, under the facts, was the plaintiff, Viking Equipment Company, the entry that really and in fact equipped and installed the sprinkler system in the hotel? It is admittedly a foreign corporation, not licensed to do business in Missouri. And if it installed the sprinkler this was doing business in the State without license. Second, did the sprinkler system, regardless of the statements in the contract, but according to the facts, become a part of the realty, so as to affect the security of the Continental Life Insurance Company by the reducing of the value of the hotel building on which its deed of trust was given, if the system were taken out and removed?
Appellant says the action brought herein is a proper one under the laws of Missouri, and cites Wayne Tank Co. v. Quick Service Laundry Co., 285 S.W. 750; Kolb v. Golden Rule Baking Co., 9 S.W.2d 840; and General Excavator Co v. Enery, 40 S.W.2d 490. If the facts in the case at bar were as in those cases, no doubt plaintiff would be entitled to recover. But they are so wholly different that they do not decide the question involved herein. In fact, the point thus raised by appellant ignored the questions...
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