Clark v. Kansas Petroleum Co.

JOHNSON, J. This action is for the recovery of nine hundred and fifty dollars on a written contract entered into by plaintiff and defendant September 5, 1904. The answer pleads that the contract is yoid for the reason that defendant is a foreign corporation and, at the time the contract was- made, had not complied with the statutes relative to such corporations doing-business in this State. The reply pleaded an estoppel grounded on the fact that defendant had received and retained the fruits of the contract. A jury was waived and the court, after hearing the evidence, rendered judgment for plaintiff. Defendant appealed. The contract on which the suit is founded was as follows: [184] “This is to certify that the Kansas Petroleum. Company is indebted to A. M. Clark, or order, in the sum of nine hundred and fifty dollars, consideration being a due bill against the Kansas City World for the said amount, to be paid on or before February 5, 1905, in cash, or forty-seven thousand five hundred shares of the capital stock of the Kansas Petroleum Company’s stock — same to be optional with the directors of the Kansas Petroleum Company at any time on or before February 5, 1905.” The evidence shows and the trial court found “that this was a contract for newspaper advertising through which defendant was endeavoring to find a market for its capital stock.” The defendant was incorporated in Arizona for the purpose of developing and operating petroleum properties in Kansas and .elsewhere. It did not comply with the statutes relating to foreign corporations and, therefore, was not authorized to do business in this State. While the contract under consideration, by its terms, gave defendant the option to pay the consideration either in cash or in its capital stock, the real purpose of the contract was to exchange stock of defendant for advertising in a Kansas City newspaper and the purpose of the advertising was to sell treasury stock of defendant to raise money for the development of its properties. We think the defense interposed is not tenable. The contract did not relate to “doing business” in this State within the legal meaning of that term, but was concerned with the furnishing of the capital on which to do business. The case falls squarely within the rule applied by this court in Bank v. Leeper, 121 Mo. App. 688, where, after reviewing the authorities, we held that a contract made in this State by a corporation for the sale of its capital stock was not a part of the businfess the corporation was organized to conduct. Speaking through Ellison, J., we said: “Such a transaction or such transactions, it is true, may occur, but they are [185] not the usual or customary or ordinary business of a telegraph or telephone company (or business company) nor is such a corporation organized for the transaction of such business.” The learned trial judge correctly interpreted the law of the case and the judgment is affirmed. All concur.