Wilson-Moline Buggy Co. v. Priebe

• Decision Date: 04 February 1907
• Citation: 100 S.W. 558,123 Mo. App. 521
• Parties: WILSON-MOLINE BUGGY CO. v. PRIEBE.
• Court: Missouri Court of Appeals

100 S.W. 558

123 Mo. App. 521

WILSON-MOLINE BUGGY CO. v. PRIEBE.

Kansas City Court of Appeals. Missouri.

February 4, 1907.

Rehearing Denied March 2, 1907.

1. CORPORATIONS — FOREIGN CORPORATIONS — RIGHT TO SUE.

Rev. St. 1899, § 1026 [Ann. St. 1906, p. 890], provides that if any foreign corporation shall fail to comply with the provisions of the statute it shall not maintain any action in the state on any demand, provided that the statute does not apply to corporations which are entirely nonresident. A foreign corporation having its principal office in another state, and engaged in manufacturing vehicles, delivered vehicles to defendant under an agreement, whereby the corporation retained the title, and defendant was to sell them at retail in his own name, making payment for any vehicle that he sold at a certain price; he having the right to retain any excess, and defendant agreed to insure the vehicles at his expense. Thereafter, the corporation decided to transfer the vehicles to another dealer, but defendant retained a few that needed repair, agreeing to repair them at plaintiff's expense and sell under the terms of the prior agreement, and to insure them. Subsequently the vehicles were destroyed by fire, and plaintiff sued to recover the value of the vehicles. Held that, at the time of the contract in controversy, the corporation was conducting a fixed business and had become a resident foreign corporation, and, as such, not having complied with the statutes, could not recover on the contract.

2. EVIDENCE—ADMISSIONS—EFFECT.

Where a contract between a foreign corporation and a resident of the state, whereby the resident agreed to insure certain property for the benefit of the corporation, was invalid because of the corporation's failure to comply with the statutes, admissions of liability by the resident after a loss were insufficient to sustain a cause of action because without consideration.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by the Wilson-Moline Buggy Company against Chris Priebe. From a judgment in favor of plaintiff, defendant appeals. Reversed.

James W. Boyd, for appellant. Allen, Nichols & Neville, for respondent.

JOHNSON, J.

The amended petition on which this cause was tried contains two counts. In the first, plaintiff alleges that it "consigned to and deposited with defendant" certain buggies and other vehicles which defendant, a carriage dealer and repairer, agreed to revarnish and otherwise to repair. Further, defendant agreed to keep the property fully insured for the benefit of plaintiff. Performance of this agreement is alleged, also the subsequent destruction of the property by fire, the collection of the insurance thereon by defendant, and his failure and refusal to pay it over to plaintiff. In the second count, the contract is pleaded as in the first, but it is alleged that defendant failed and neglected to insure the property for plaintiff's benefit, and the cause of action asserted is founded on this breach of the contract. The original petition contained no other cause of action than that which was afterward pleaded in the first count of the amended petition. Defendant by proper and timely motion assailed the right of plaintiff thus to amend the petition, and now complains of the action of the trial court in overruling his motion, but, in the view we take of another phase of the case, it is not necessary to determine the questions of pleading raised, since our conclusion requires that the judgment recovered by plaintiff be reversed without being remanded.

Plaintiff is a corporation created under the laws of Illinois. It is engaged in the business of manufacturing and selling carriages and like vehicles, and its principal office and factory are in Moline, Ill. Defendant is a retail dealer in such goods at St. Joseph, and, as a part of his business, conducts a repair shop. For some time prior to the beginning of business relations between plaintiff and defendant, the McFarland Carriage Company, another retail dealer in St. Joseph, was handling goods manufactured by plaintiff under an agreement similar to that afterwards made by plaintiff with defendant. Becoming dissatisfied with the McFarland Carriage Company's manner of doing business, plaintiff, in the fall of 1903, decided to make a change and demanded possession of its goods on deposit with that concern. The demand being refused, plaintiff recovered immediate possession of the property in a replevin action which it brought for that purpose in the circuit court of Buchanan county. The value of the goods recaptured, taken at plaintiff's list prices, amounted to $3,900. Plaintiff then delivered the goods to defendant under an oral agreement in substance as follows: Plaintiff retained the title to the property. Defendant was to house and take care of it without charge and sell at retail in the regular course of business. He was under no obligation to pay for any vehicle he did not sell, but, when he made a sale, was required to pay to plaintiff the price at which the vehicle was listed to him by plaintiff. He could sell at any price he chose, and the excess he obtained over the invoice price of an article belonged to him as his compensation and profit. He was to conduct the business and make credits and collections in his own name. Plaintiff claimed no interest in the proceeds of sales, but, as stated, defendant became bound to pay for vehicles when he sold them. On the subject of insurance, defendant agreed to carry at his expense insurance to the amount of $1,400 for the benefit of plaintiff, and plaintiff at once procured at its own expense a policy in the sum of $2,500. Defendant's field of operation was the city of St. Joseph. Plaintiff employed a traveling salesman named Jackson, who had assisted the McFarland Carriage Company in selling the goods, and whose services were transferred to defendant. This salesman made trips to nearby towns. Sales made by him on such trips were for the account of plaintiff, and the orders were filled from the factory; but in instances where the purchaser was in a hurry for the vehicle orders were filled out of the stock in defendant's custody, and in such cases defendant received no commission, but was paid a "transfer charge" of 75 cents. Sales solicited by Jackson in St. Joseph were for the account of defendant. In the following June, plaintiff's manager came to St. Joseph and informed defendant that plaintiff desired to transfer the stock to the St. Joseph Buggy Company, another retail dealer. Defendant made no objection, and delivered to plaintiff all of the vehicles in his custody except a number that had become shopworn and were in need of repair. At plaintiff's request, he retained them and agreed to repair them at plaintiff's cost, and sell them under the terms of the prior agreement. Plaintiff contends that defendant further agreed to insure them at their full value. The vehicles were afterwards destroyed in a fire that occurred at defendant's place of business. Plaintiff adduced evidence tending to show that defendant, after the fire, when pressed for settlement, acknowledged his agreement to insure and his liability thereunder, and agreed to reimburse plaintiff when he collected his insurance. Many of these facts are denied by defendant, but the issues of fact were resolved by the jury in favor of plaintiff, and in our discussion we will assume as proven the version of facts most favorable to the causes of action asserted. It was shown by defendant, and conceded by plaintiff, that the latter has not complied with the laws of this state, regulating the right of foreign corporations to do business therein, but it is argued by plaintiff that this fact is without effect on its right to maintain the present action, because the facts detailed show that it was not transacting business in this state within the meaning of the statute. Rev. St. 1899, §§ 1024-1027 [Ann. St. 1906, pp. 886-892].

The right of corporations created under the laws of other states to send itinerant salesmen into this state to solicit and transact business without complying with the provisions of the laws under consideration is expressly recognized in section 1025, supra, and this exception indicates a legislative purpose not to interfere with the free conduct of interstate commerce, but only to require those foreign corporations which seek to establish and maintain some part of their enterprise within the state, and which therefore expect to avail themselves of the benefit and protection of its laws and the use of its courts, to submit themselves to the burdens imposed by its laws on domestic corporations of like character. Therefore, in the use of the term "to transact business in this state" reference plainly is had to business...