Blevins v. Fairley, 71 Mo. App. 259

Blevins v. Fairley

71 Mo. App. 259 | Mo. Ct. App. | 1897

Ellison, J.

This action is on a nonnegotiable promissory note assigned to plaintiff. A demurrer to the plaintiff’s evidence was sustained and he appeals.

statement. It appears that the note was executed to the Davis & Rankin Building & Manufacturing Company, an Illinois corporation. That it was given to such corporation as part consideration for the erection and equipment of a creamery at Versailles, Missouri. The contract for the creamery, out of which the note arose, was made by a traveling soliciting agent representing the corporation. It is urged in defense of the judgment for defendant, *262that the corporation had not complied with the laws of 1891, “page 75, by filing proper certificate with the secretary of state and obtaining authority, and that by reason thereof it could not contract or maintain an action in this state under the express provisions of the law aforesaid. The law itself expressly excludes from the operation of the act traveling salesmen soliciting business in this state for foreign corporations. And it has been held that the act applied only to those corporations which established themselves here as “resident foreign corporations” and transacted business. And that it did not apply to foreign corporations not established or resident in this state. Steam Heating Co. v. Gas Fixture Co., 60 Mo. App. 155; Davis & Rankin Bldg. & Mfg. Co. v. Dix, 64 Fed. Rep. 412; Williams v. Scullins, 59 Mo. App. 30.

Corporation: resident foreign: note-In the present case it does not appear that at the time the note was executed said corporation was an established resident institution in this state. It does not appear that it aid more than have an agent who took orders which were sent to Chicago and there executed by sending machinery and material into this state for erection. We are of the opinion, therefore, under the authorities, supra, that the action of the court in holding the act of 1891 applicable was erroneous.

2. But it may be that further development may show that in reality such foreign corporation did fall under the provisions of said act. It may have been a corporation established for business in this state and residing here though evading the provisions of the law, or at least failing to comply with such provisions. Cases may be readily suggested where foreign corporations might so act and be so situated as to fall within the terms of the law, as construed by the courts, and *263yet fail to comply with the law. "We have no means of knowing how the truth was in this case, hut it does appear thab, in point of fact, the corporation did comply with the terms of the law and receive authority from the secretary of state. But'this was on November 13, 1893, more than a year after the date of the note which was executed August 11, 1892.

—: 3. If, therefore, it should be shown that the Davis & Rankin corporation was such as to be embraced by the statute aforesaid at the time the contract was made and the note was executed, a subsequent compliance with the statute can not relate back and validate a transaction which was invalid when it took place.

We have deemed it necessary to say this from the fact that plaintiff himself introduced the certificate of authority of the date aforesaid, from the secretary of state.

The judgment will be reversed and cause remanded.

All concur.