Wulfing v. Armstrong Cork Co.

• Decision Date: 28 March 1913
• Parties: WULFING v. ARMSTRONG CORK CO.
• Court: Missouri Supreme Court

157 S.W. 615

WULFING v. ARMSTRONG CORK CO.

Supreme Court of Missouri, Division No. 1.

March 28, 1913.

Rehearing Denied May 31, 1913.

1. CORPORATIONS (§ 657) — FOREIGN CORPORATIONS — LICENSES — CONTRACTS — INVALIDITY.

Rev. St. 1899, § 1024, declares that every foreign corporation before transacting business in the state shall have and maintain a public office, and section 1025 requires the corporation to file with the Secretary of State a certified copy of its charter and to pay certain incorporating taxes and fees preliminary to the issuance of a license; the provision not limiting the duty to procure a license to the time before they begin the transaction of business. Held, that the duty to procure a license is a continuing one, and as the corporation is required to establish an office before it can obtain a license the lease of property for an office before it obtained a license is not invalid.

2. CORPORATIONS (§ 657) — FOREIGN CORPORATIONS — LICENSE — ESTOPPEL.

Though a lease of premises by a foreign corporation was invalid, because it had not obtained a license prior thereto, the lessor's continued acceptance of rent after the corporation obtained its license will estop him from subsequently contesting its validity.

Woodson, J., dissenting in part.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Ejectment by John M. Wulfing against the

Armstrong Cork Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. Scott Hancock, of St. Louis, and W. Hall Trigg, of Boonville, for appellant. Joseph H. Zumbalen and Henry T. Ferriss, both of St. Louis, for respondent.

BROWN, C.

This is ejectment for the property and building in the city of St. Louis known as Nos. 10 and 11 North Second street, which was, up to the 6th day of May, 1907, owned by Lavinia S. Shallcross and others. At the date last named it was purchased by the plaintiff at a partition sale made by one Charles F. A. Mueller, a special commissioner appointed by the St. Louis circuit court for that purpose in a suit pending between the owners.

The defendant is a Pennsylvania corporation, and has been engaged in business in the city of St. Louis since 1895, and from November, 1896, up to the time of the trial it maintained an office and place of business in the premises in controversy, where it carried on the business of buying and selling corks and other brewery supplies; and it had a warehouse in St. Louis from which to make its deliveries. During all that time Mr. Sidney L. Gilbert has been its business manager in that city. Its principal office was in Pittsburgh, Pa. Up to January 13, 1902, it had not complied with the laws of the state of Missouri entitling it to a license to do business in the state, but on that date, having complied with those laws, its license issued, and was delivered by the Secretary of State.

By a lease dated October 10, 1901, the owners of the premises, parties to the partition suit, by Wyatt Shallcross, their trustee, leased the premises to the defendant for use as store and cork factory for a term of 10 years from and after the 1st day of January, 1902, "at an annual rental of fifteen hundred dollars ($1,500.00), payable monthly in installments of one hundred and twenty-five dollars ($125.00) each." At the trial, which occurred at the February term, 1908, Mr. Mueller, the commissioner, testified that prior to the sale of the property by him the plaintiff asked him to ascertain for him the nature of the tenancies of the parties in possession of the property, which included other buildings than those in controversy, and on October 8, 1907, he went to defendant's office, and in a conversation with Mr. Gilbert, its manager, was told by the latter that defendant had no lease on the premises in question; that the lease it had had expired, and that he supposed they would have to vacate; that thereafter, and before the sale, he saw the plaintiff and communicated to him the statements of Mr. Gilbert. Mr. Gilbert testified that prior to the sale Mr. Mueller came to his office, asking permission to place a sign in front of the building, and stating that the property was to be sold; that the witness thereupon, in Mr. Mueller's presence, turned to his bookkeeper, saying, "Mr. Sharing, they tell me they are going to sell the building, and I am under the impression they have got us short here;" that the two talked the matter over in the hearing of Mr. Mueller, and were uncertain as to whether or not their lease on the property had expired, or was still in force; that during the conversation it was stated that the lease was in Pittsburgh, and the witness said that, as he was going to Pittsburgh within a week or two to attend a directors' meeting, he would then find out how matters stood; that Mueller asked nothing concerning the terms of defendant's tenancy or the duration of its lease; that he said nothing to Mueller to the effect that the tenancy of the defendant was from month to month.

Mr. Shallcross testified that before the sale Mr. Mueller had asked him to bring the leases covering the several properties in the sale, so that they might be referred to in case any questions were asked about them; that he then knew that defendant's lease had not expired, and, while unable to state positively, he thinks he so informed Mr. Mueller. He had at the sale memoranda showing the terms of all the leases.

The plaintiff testified that he had been in business on Second street for 25 years, and that he had known for a number of years that the defendant was in possession of the property.

The court excluded the statement of plaintiff that on the 24th or 25th of October, 1907, Mr. Mueller had reported to him that defendant's agent had told him there were no leases on the property in controversy. The appellant's abstract of the record shows that this action was excepted to, but the defendant filed a supplemental abstract showing that this was not the case, and nothing further was done.

The defendant's lease was not recorded until after the plaintiff purchased and paid for the land.

The appellant makes no complaint, either in his assignment of errors or brief, that the question of notice to plaintiff of the defendant's lease was not properly submitted to the jury upon unexceptionable instructions. While he assigns error on the action of the court in excluding testimony, it has not, as we have seen, been properly saved in the record, and even were it material error, which is doubtful, it is not before us for consideration. The only question presented is whether or not the lease is void and inoperative, because the defendant had not, on or before the 1st day of January, 1902, the date upon which, by its terms, it was to take effect, by compliance with the statutes in that respect, acquired the right to do business in this state. This point is urged with great force and learning by the appellant's counsel. These statutes have frequently been before the court for consideration and interpretation, from the point of view involved in each particular case, but as new questions are presented it seems necessary to examine them in the new light so suggested. In doing so we shall refer to the Revised Statutes of 1899, which were in force at the time.

Section 1024 provides 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, * * * if already established, shall have and maintain a public office...