Mergenthaler Linotype Co. v. Hays

— 125 — OPINION. FARRINGTON, J. The law is well settled that the failure of a foreign corporation doing business in this State to comply with the law with reference to obtaining a license, etc., as provided in the sections hereinbefore enumerated is a matter of defense which must be affirmatively alleged by the party relying on it. United Shoe Machinery Co. v. Ramlose, 210 Mo. l. c. 645, 109 S. W. 567; Groneweg & Schmoentgen Co. v. Estes, 139 Mo. App. 36, 119 S. W. 513; and there are numerous other decisions in Missouri to the same effect. This judgment must be reversed and the cause remanded, first, for the reason that the court directed a verdict on the pleadings. Nowhere in the pleadings is there any allegations that the plaintiff was doing business in Missouri contrary to any law in this State. An examination of the answer discloses that while it alleges that plaintiff has not complied with the foreign corporation law, there can nowhere be found any fact pleaded charging it with doing business in Missouri such as is contrary to law, — that is, an intrastate business. • Besides, the reply positively negatives the theory that such condition existed. “Doing business in the State” is an essential averment to raise the issue sought to be invoked here. [Groneweg & Schmoentgen Co. v. Estes, supra; Ellis Lumber Co. v. Johns, 152 Mo. App. 517, 133 S. W. 633.] However, as the case must be retried, we will consider it as though such defense were property raised in the pleadings. In-this case there was at most but one transaction. The contract under which the machine was delivered was to continue for six years if it remained a lease, and the rent was to be paid annually. The different periods of payment and the continued use of the machine by the lessees under the lease for the term made the transaction as to the making of the lease but — 126 — one piece of business, Tbe sale and delivery of a horse for one hundred dollars cash in hand is one transaction. If the payment is to be in installments, and the horse is to be worked in ten different wagons by the purchaser this would not make the sale and delivery of the horse more than one transaction. So far as the pleadings in our case show, this was the only business the plaintiff did or ever expected to do in Missouri. As to isolated transactions, we quote from 19 Cyc. 1268: “The general conclusion of the courts is that isolated transaction's, commercial or otherwise, taking place between a foreign corporation domiciled in one State and citizens of another State, are not a doing or carrying on of business by the foreign corporation within the latter State, even according to the weight of authority, where the transaction is of such a character as to constitute a part of the ordinary business of the corporation.” Under this is a note in which scores of cases from many States are cited, among which is Missouri. [See, also, the numerous cases cited in support of this rule in 10 L. R. A. (N. S.) 693 note, and 22 Am. & Eng. Anno. Cases, 553 note; First National Bank v. Leeper, 121 Mo. App. 688, 97 S. W. 636; Meddis v. Kenney, 176 Mo. 200, 75 S. W. 633; Painter v. Colorado Springs & Cripple Creek Dist. Ry. Co., 127 Mo. App. 248, 104 S. W. 1139; St. Louis Wire-Mill Co. v. Consolidated Barb-Wire Co., 32 Fed. 802; Penn Collieries Co. v. McKeever (N. Y.), 75 N. E. 935, 2 L. R. A. (N. S.) 127.] This principle is analogous to the rule well known that a sale of one drink of spirituous liquor does not constitute one a liquor dealer. The Alabama cases cited by respondents are of no aid here as the statute in that State prohibits any business. For this further reason, therefore, the judgment in this case, being contrary to the overwhelming weight of authority, is erroneous. In the case under consideration, the business done was under the contract or lease. The machine was de — 127 — livered to the defendants f. o. b. New York City. The defendants were induced to enter into the lease by a traveling salesman representing the plaintiff who had no alleged place of business in Missouri. The contract was accepted in New York. The furnishing of a competent machinist to erect the machine in Missouri and to instruct the employees of the lessees how to operate it was merely an incidental inducement to the making of the contract. Such machinist when so employed according to the very terms of the lease would be at the time he was engaged at his work in Missouri an employee of the defendants as they were to bear all his expenses while so engaged. The agreement to purchase supplies from the lessor in New York would be a contract clearly interstate, and if from the agent of the lessor would be of the same character provided such agent did not furnish them from some place of' business or office képt for such purpose in this State., The paying of taxes and premiums on insurance policies by the lessors could not be construed as an act of the plaintiff in carrying on business in this State., Many foreign corporations must pay taxes in Missouri on their property located here and still they may not be violating any statutes relative to doing business. The power to tax retained by the States is entirely different from the power to deal with commerce between citizens of the different States. The question as to what constitutes an interstate transaction, and that relating to the lack of power in. the State to impose burdens upon or fetter such commerce, have been so thoroughly discussed already that we shall merely cite some of the cases that are controlling which we think clearly hold that the transaction we have under consideration upon the pleadings was interstate business and therefore not to be fettered by the local State laws. [See: Butler Bros. Shoe Co. v. United State Rubber Co., 156 Fed. 1; International Text-Book Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 27 — 128 — L. R. A. (N. S.) 493; Buck Stove & Range Co. v. Vickers, 226 U. S. 204, 57 L. Ed. 189; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 28 L. Ed. 1137, 1139; Robbins v. Taxing District of Shelby County, 120 U. S. 489, 30 L. Ed. 694; Philadelphia & Southern Mail Steamship Co. v. Commonwealth of Pennsylvania, 122 U. S. 326, 30 L. Ed. 1200; Crutcher v. Commonwealth of Kentucky, 141 U. S. 47, 35 L. Ed. 649; Lyng v. People of the State of Michigan, 135 U. S. 161, 34 L. Ed. 150; State ex rel. v. Pacific Mut. L. Ins. Co. v. Grimm, 239 Mo. l. c. 182, 143 S. W. 483; International Text-Book Co. v. Killespie, 229 Mo. 397, 129 S. W. 922; Corn Products Mfg. Co. v. Western Candy & Bakers Supply Co., 156 Mo. App. l. c. 116, 135 S. W. 985; Koenig v. Boat Mfg. Co., 155 Mo. App. 685, 135 S. W. 514; Simpson v. Shepard, 230 U. S. 352, 57 L. Ed. 1511; Lehigh Portland Cement Co. v. McLean (Ill.), 92 N. E. 248; Chicago Crayon Co. v. Rogers (Okla.), 119 Pac. 630; Vulcan Steam Shovel Co. v. Flanders, 205 Fed. 102.] In the case last cited it is said: “The lease between Jones and the plaintiff and the bringing of ■the shovel into this State was interstate commerce. The ■court is satisfied that this sale to the defendant stands ■on no different basis that it would if the original shipment to Jones had been on a contract for sale which ■for some reason had been forfeited, instead of on a ■contract for lease ’ ’ referring to some of the cases hereinbefore cited. We see no distinction between a contract of lease, a contract of factorage, and a contract of sale, so far .as the transaction under which the articles are dealt with is to be classified as interstate or intrastate. The mere ownership of personal property by a foreign •corporation is not prohibited under the Missouri law. It is a doing of business in Missouri with that property that the statutes are designed to reach. As to such property standing idle the foreign corporation would be required to pay taxes, would be permitted to — 129 — protect it by insurance, and would be permitted to commence an action for tbe recovery of possession of tbe same provided it was denied possession by wrongful act of another. [See United Shoe Machinery Co. v. Ramlose, 231 Mo. 508, 132 S. W. 1133.] The case of United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, 109 S. W. 567, is clearly distinguishable from the case at bar. The plaintiff in that case maintained a place of business in St. Louis, Mo., kept its stock, property and assets there, employed an agent to look after its business in Missouri, and employed its machines by lease in manufacturing for which it was to collect a royalty on every pair of shoes manufactured. It was organized to carry on that business under the .laws of Massachusetts, and was actually prosecuting such business in Missouri by its agent and office and place of business in this State. No such condition prevailed in our case according to the allegations of the pleadings. The same distinction prevails in Diamond Glue Co. v. United States Glue Co., 187 U. S. 611, 47 L. Ed. 328; Amalgamated Zinc and Lead Co. v. Bay State Zinc Min. Co., 221 Mo. 7, 120 S. W. 31; Fay Fruit Co. v. McKinney Bros. & Co., 103 Mo. App. 304, 77 S. W. 160; and other cases cited by respondent. As we view the business done between the parties to this lease, it was purely an interstate transaction in its character and therefore not subject to the control of the sections of the Missouri statutes in question, and therefore plaintiff should not have been denied the right to maintain its action in our courts. The judgment is reversed and the cause remanded. Robertson, P. J., and Sturgis, J., concur.