221 Mo. 7 | Mo. | 1909
Plaintiff, a corporation under the laws of New Jersey, on December 27, 1905, filed a petition in the circuit court of Jasper, the purpose of which was to enjoin and restrain the defendant from mining on the east half of a certain tract of ground known and described as Lot 107 in the north
By the answer the defendant pleaded:
1. That plaintiff was a foreign corporation, and had not complied with the laws of this State by filing with the Secretary of State a copy of its charter or certificate of incorporation, and had no license to transact business in this State, and had no right to commence or maintain a suit such as this or any other in the courts of this State.
2. Defendant admitted its corporate capacity; admitted that it was in possession of that part of the premises described in plaintiff’s petition, specifically describing the same by metes and bounds; admitted that it was mining on the same at the commencement of this suit; admitted that it had been so engaged long prior to the filing of the suit and purposed to continue said mining, but denied all other matters not specifically admitted.
3. Defendant further pleaded that it was mining on such disputed tract by virtue of an agreement with plaintiff, which agreement is described in detail, as well as defendant’s conduct thereunder, and this portion of the answer concludes by a plea of estoppel.
Reply was a general denial.
, At the trial evidence was heard subject to objections and at the close of the plaintiff’s case the court sustained a demurrer to the testimony.
Over the objection of the defendant the plaintiff put in the following documentary evidence: (1) certificate and license issued to plaintiff by the Secretary of State of Missouri, of date January 25, 1906; (2) mining license from Granby Mining & Smelting Company, of date March 1, 1899, to Rafael Estrada and covering the land in dispute; (3) written transfer of the above named mining license or lease from Rafael Estrada to TV TV Lowe, trustee, of date May 31, 1904; (4) written transfer of the first named license, of date October 14,1904.
By oral proof it was shown that in March, 1906, the plaintiff got a new license or lease from the Granby Mining & Smelting Company; that plaintiff had been mining on the property covered by the Estrada lease since 1902; that TV TV Lowe was trustee for the plaintiff in the instrument made to him and described above; that plaintiff notified defendant to cease mining on the disputed tract, which was done for about three weeks and that then mining was resumed and continued until the granting of the injunction; that the ore was six per cent ore and valuable; that defendant purposed further operations on this land unless restrained by injunction. Such are the facts of the case. Counsel seem to agree that the court, nisi, dismissed plaintiff’s bill on the theory that it had no license to transact any business in this State prior to January 25, 1906, and therefore could not maintain this suit, but whatever may have been the views below, we have detailed an outline of the facts, and can, as we have the right, proceed to determine the merits.
I. There are two questions presented by this record, (1) can plaintiff, a foreign corporation, without license to do business in this State, but having actually been resident in the State, and transacting its charter business therein for some years, be permitted to bring an action in our courts, and after having so brought the action, be permitted to maintain and prosecute it, by taking out the required license before trial? And (2), if it can thus give itself a status or standing in our courts, can it further enforce contracts which it has made and which are to be fully performed in this State? Of these questions in their order.
We are inclined to think that both contentions must be answered in the negative. But they are so closely related that a discussion of the one necessarily involves the discussion of the other. That a foreign corporation can sue in Missouri on contracts made outside of Missouri, or made by salesmen traveling for them in Missouri, can sue in the courts of the State without license from the Secretary of State is unquestioned. But the question here is, can a foreign corporation come into this State, open up a place of business and actually do a part of the business authorized by its charter, in violation of our law and without taking out a license and otherwise complying with our statutes, have the doors of our courts open to them, to protect the unlawful business? We think not. If the petition in such cases disclosed the facts aforesaid it would be be demurrable. Whilst we have held that the plaintiff in such cases does not have to plead that it has a license to do business, and" that the failure so to plead does not make the petition demurrable, United Shoe Machinery Co. v. Ramlose, 210 Mo. l. c. 649, yet there can be no question that if it appeared
In this State we hold, as we shall show in a subsequent paragraph, that the unlawful contract cannot be validated by taking out a license after the making of the contract, hence our State falls within that class of jurisdictions mentioned in the first paragraph of the quotation, mipra; for that reason we suggested in the beginning that the two questions were much intertwined in the case at bar.
Not only have our courts discredited the doctrine of the Carson-Rand case, but in Minnesota, wherein they have practically the same statute as ours, the court refused to follow that case. The Minnesota court in Brewing Co. v. Peimeisl, 85 Minn. l. c. 124, says: “Counsel for the plaintiff practically concede that by virtue of this provision it could not maintain
In Halsey v. Henry Jewett Dramatic Co., 99 N. Y. Supp. l. c. 1124, the court says: “The language of section 181 of the tax law is that every foreign corporation not excepted, authorized to do business under the general corporation law, shall pay a license tax within the time prescribed, or else it shall not maintain an action in the courts of the State. The answers demurred to allege that this tax had not been paid when the action commenced, and, if that be true, then the action cannot be maintained. The fact that the tax was paid after the action was commenced does not change the situation. The plaintiff had no right to bring the action, and, having brought it without right, he cannot, notwithstanding the payment of the tax thereafter made, continue and maintain an action which he, in the first instance, had no right to bring. ’ ’
We quite agree with the Minnesota court in that the beginning of a suit is but one step in maintaining it. The construction of the word “maintain” as given in the Carson-Rand case is too narrow, when we consider the purpose of the statute wherein it is used;, i. e., Revised Statutes 1899, section 1026.
The plaintiff in the case being incapacitated to sue in the first place, did not so change its status by taking out the license as to be permitted to further prosecute a suit brought in defiance of the statute. These statutes, sections 1025 and 1026, Revised Statutes 1899, have been so often quoted in the cases hereinafter cited that a reproduction here would be superfluous.
II. But going to the contract which is the basis of plaintiff’s right to maintain this suit, i.e., the license
Without a valid contract the proof failed to show that the plaintiff was entitled to any relief at the hands of a court of equity, nor for that matter in a court of law. We conclude that it neither had the right to bring or maintain the suit, nor did it show
The judgment, nisi, is correct and is affirmed.