182 Mo. App. 113 | Mo. Ct. App. | 1914
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
In the case under consideration, the business done was under the contract or lease. The machine was de
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
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
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.