text:
    TOWER et al., Appellants, v. COMPTON HILL IMPROVEMENT COMPANY.
    Division One,
    December 21, 1905.
    1. INCONSISTENT REMEDIES: Election. Whenever the law supplies a party two methods of redress for the violation of an agreement, based upon inconsistent theories, he is put to his election, and his choice of either is a bar to his resort to the other.
    2. -: -: Abrogating Forfeiture Agreement: Subsequent Ejectment: Limitations. Plaintiff’s deed conveying a 100-foot lot to defendant, contained a provision that the grantee or his assigns should not erect on the lots a building of any hind except one dwelling house, to cost not less than $7,500, and for a violation of that agreement the property was to revert to plaintiff, and in consideration of the acceptance of said conditions and of the purchase money the plaintiff subjected other adjoining property to the same restrictions, and agreed that it should be sold only in 100-foot lots or larger. In 1890 defendant conveyed a portion of the rear of said lot, and the grantee in 1891 erected a srdall residence and stable thereon. To that, plaintiff made no objection but in 1903 subdivided his adjoining property into fifty-foot lots and notified defendant that he intended to sell them as subdivided. Defendant immediately instituted suit to restrain plaintiff from subdividing his property into smaller lots than 100 feet each, and on hearing, defendant’s bill was dismissed, for the reason that both parties were equally wrong and defendant had not come into court with clean hands. Then, in 1901, plaintiff brought this'suit in ejectment, based on the forfeiture clause of his deed. Held,

      1. That, having treated the action of the defendant in violating the terms of the deed as releasing him from the obligation not to subdivide his owp property, and having set up that defense in the equity suit, plaintiff made an election of remedies, and is now precluded from asserting a right to vindicate the wrong done him by bringing an ac- , tion of ejectment.
    2. Limitation. That plaintiff was barred by the ten-year Statute of Limitation from maintaining ejectment, and the fact that he waited until after the Supreme Court determined the equity suit to bring his ejectment affords no legal excuse, but, on the contrary, only emphasizes the inconsistency of his two legal remedies.
    3. -: Waiver. The plaintiff cannot be heard to say, as bearing on the question of limitation, that he had the right to waive the first breach in the terms of his deed, namely, the subdivision of the lot by defendant’s sale of a portion of it in 1890, and to insist upon the second breach of the terms of that deed, namely, the building of a stable by the grantee on that portion, and thus avoid the effect of the Statute of Limitations upon his right of action in the ejectment, for throughout the injunction suit plaintiff relied upon the first breach and that case was decided in his favor on that ground.
    Appeal from St. Louis City Circuit Court.— Hon. Franklin Ferriss, Judge.
    Affirmed.

      Edward S. Robert and Douglas W. Robert for appellants.
    (1) The stable built by Mrs. Tinker on lot 4 of the plat was a plain violation of the condition of the deed. It is not a residence worth $7,500, nor a residence in any sense within the terms of the deed. It does not front on Grand avenue, and said stable is not an appurtenance to a residence built on the lot in controversy, for the simple reason that no residence has been built on said lot. Compton Hill Improvement Co. v. Tower, 158 Mo. 290. (2) Ejectment is the proper remedy for the recovery of land after breach of a condition subsequent. Kirk v. Matier, 140 Mo. 23; Ruclclick v. Railroad, 116 Mo. 25; Avery v. Railroad, 113 Mo. 561; Ellis v. Kyger, 90 Mo. 600; O’Brien v. Wagner, 94 Mo. 93; Clark v. Brookfield, 81 Mo. 503; Jones v. Railroad, 79 Mo. 96; Cowell v. Springs Co., 100 U. S. 55. (3) Even if tlie plaintiffs did waive the breach of the condition about subdividing, that would in nowise estop them from asserting their right of forfeiture for building the stable. Plaintiffs might have been indifferent to the one and not to the other, and they had the full statutory period in which to assert their right. The essential elements of estoppel are wanting. O’Brien v. Wagner, 94 Mo. 93; Ellis v. Kyger, 90 Mo. 600.

      Kehr $ Tittmann for respondent.
    (1) The deed from Tower and wife to Nolker of December 4, 1889, vested the title in fee in Nolker and his assigns, and it remains so vested, notwithstanding a breach of condition subsequent, until re-entry by the grantor or his heirs. Appellants concede this, for they lay their right of entry as of January 18, 1901, the day upon which they brought this action. 2 Washburn on Real Property (6 Eel.), sec. 951, p. 13; Ruddick v. Railroad, 116 Mo. 33; Ellis v. Kyger, 90 Mo. 606; Hubbard v. Hubbard, 99 Mass. 192. The deed is not only a conveyance from Tower to Nolker of the lot, but also a conveyance by Tower to Nolker of an easement in the remaining 510 feet of Tower’s property. (2) Restrictions inserted in a deed as part of a plan of improvement are not to be deemed conditions in the technical sense, although spoken of as conditions. A forfeiture does not arise from their breach. Ayling v. Kramer, 133 Mass. 12; Cassidy v. Mason, 171 Mass 507; 2 Devlin on Deeds, secs. 971 and 999; Post v. Weil, .115 N. Y. 361; City v. Wiggins Perry Co., 88 Mo. 619; Hayes v. Ins. Co., 77 N. Y. 244. (3) Conditions which go to defeat an estate are strictly construed. The law abhors forfeiture. Merrell v. Railroad, 96 Mo. 179; Stoddard v. Wells, 120 Mo. 29; Gratz v. Railroad, 165 Mo. 211; Crane v. Hyde Park, 135 Mass. 147; Dickson v. Railroad, 168 Mo. 90. (4) If the restrictions on Nolker’s lot are treated as conditions, their breach occurred when lot 4 was enclosed and the Tinker residence built in 1890. Appellants’ right of action is barred by limitation as it is also lost by waiver and estoppel. If Tower waived the breach as appellants now contend, we answer that a condition that destroys an estate is. to be taken strictly and if once dispensed with, in whole or in part, is dispensed with forever. Dumpor’s Case, 4 Coke 119; Sharon Iron Co. v. Erie, 41 Pa. St. 341; Dakin v. Williams, 17 Wend. 447; Ludlow v. Railroad, 12 Barb. 440. (5) Treating the acts of Nolker’s assigns as a violation of the restrictions imposed on their lot, Tower in May, 1893, subdivided his tract and put it on the market in violation of the restrictions on it. He thereby elected to abandon the contract and discharge the restrictions. He sought his redress in that way and having elected his remedy and received the benefit of it, he can have none other. Bigelow on Estoppel (5 Ed.), 673; 7 Ency. Pleading and Practice, 361-3; Bensieck v. Cook, 110' Mo. 182; Lilly v. Menke, 143 Mo. 146; Nanson v. Jacob, 93 Mo. 332; Com. Co. v. Railroad, 52 Mo. App. 413, 126 Mo. 349; Dry Goods Co. v. Warden, 151 Mo. 578; Bank v. Totten, 94 Mo. App. 603; Connihan v. Thompson, 111 Mass. 270; Rodermund v. Clark, 46 N. Y. '354; Steinbaeh v. Ins. Co., 77 N. Y. 502; Moller v. Tuska, 87 N. Y. 166; Conrow v. Little, 115 N. Y. 387; Hill’s Adm. v. Huchabier’s Adm., 70 Ala. 183; Luther v. Clay, 100 Ga. 236; Thompson v. Ploward, 31 Mich. 309; Kinzie v. Wixom, 39 Minn. 387; Zwietusch v. Watkins, 61 Wis. 615; Doane v. Railroad, 165 111. 510; Grymes v. Sanders, 93 U. S. 55; McLean v. Clapp, 141 U. S. 429; Daniels v. Tearney, 102 U. S. 421. (6) A forfeiture can be enforced only by the grantor or his heirs. A devisee takes as purchaser, not as heir. Tower being dead, Ms property passes to Ms devisees under the will. They cannot, as devisees, enforce the forfeiture and they cannot sue as heirs because the property passes by the will. Southard v. Railroad, 26 N. J. L. 21; Sauer v. Griffin, 67 Mo. 654; State ex rel. v. Pohl, 30 Mo. App. 321; Schulenburg v. Harriman, 88 U. S. 63; Ruch v. Railroad, 97 TJ. S. 696.

      Edward 8. Robert and Douglas W. Robert for appellants in reply.
    We do not understand upon what theory defendant contends that we have waived this right or are estopped. The Statute of Limitation gives us ten years in which to sue. There is not a single element of estoppel present in the case at bar and instead of a waiver, Tower showed by his letter of May 11,1893, that he did not propose to waive the breach of the building of the stable up against his property; that he did not choose to institute proceedings for a forfeiture because some imaginary lines had been drawn through the property is only in accordance with decency and good sense, but when the Tinker stable was built and he found that his property was converted into a back yard for the Compton Hill addition, then he asserted his right by treating the building of the stable as a breach of the condition. The cases cited under this point by defendant do not bear out their contention, because, as far as they are from the facts of this case, the parties in those cases took affirmative action, which amounted to a waiver. Ludlow v. Railroad, 12 Barb. 441; Dakin v. Williams, 17 Wend. 447; Sharon Iron Co. v. Erie, 41 Pa. St. 341; Dumpor’s Case, 4 Coke 119.
   MARSHALL, J.

This is an action of ejectment, instituted in the circuit court of the city of St. Louis, on the 18th of January, 1901, by the executors and devisees under the will of George P. Tower, deceased, to recover a certain tract of land in City Block No. 1366, having a front of 100 feet on the east line of Grand avenue by a depth of 295 feet eastwardly, except 701 feet on the rear of said lot. which has been thrown into lots 3 and 4 of “Compton Heights.”

The ouster is laid as of the 18th of January, 1901.

The case was tried by the court without a jury, and the trial resulted in a judgment for the defendant, from which the plaintiffs appealed.

THE ISSUES.

The petition is in the usual form in such cases.

The answer admits the corporate character of the defendant and that it is in possession of the premises, and then denies every other allegation in the petition not specifically admitted. It then specially pleads that the land sought to be recovered is the south 100 feet of a large tract of 610 feet in City Block No. 1366 and fronting on Grand avenue, which belonged in 1889 to George F. Tower; that on the 4th of December, 1889, Tower conveyed the 100 feet to Nolker in consideration of $9,000, retaining the remaining 510 feet, and imposed upon both tracts certain restrictions with reference to subdividing and improving the respective parts, which will be more particularly referred to hereinafter; that on the 7th of January, 1890, the defendant became the owner of the premises by mesne conveyances from Nolker; and on the 8th of July, 1890, it subdivided the -lot so purchased from Tower, together with other property owned by the defendant, adjoining the same, into what is known as Compton Heights; ’ ’ and on the 8th of July, 1890, filed a plat of that subdivision in the recorder’s office of the city of St. Louis, which showed the rear end of the lot acquired from Tower to be incorporated in lots 3 and 4 of that subdivision, of all of which Tower had notice and knowledge; that immediately upon filing said plat, the defendant offered for sale the lots set out and described in tbe subdivision; and on the 6th of August, defendant sold lot No. 4, which comprised, as aforesaid, a part of the eastern end of the lot acquired from Tower, to Philippine Tinker, who immediately improved said lot by building thereon; of all of which plaintiffs had knowledge, and in which they acquiesced, and, therefore, defendant says the plaintiffs are estopped to assert any violation of the covenants in the deed from Tower to Nolker. The answer further specially pleads the ten-year Statute of Limitations. The answer further pleads, that after the defendant had so subdivided the lot acquired from Tower and had sold it, Tower subdivided the remaining 510 feet into smaller lots and advertised the same for sale, and that he thereby elected between the remedies afforded by law for the violation, if any, of the terms of the conveyance to Nolker, and, hence, cannot maintain this action. The answer further specially pleads, that on the 22nd of July, 1893, the defendant instituted a suit in equity to restrain Tower from so subdividing the remaining 510 feet of the ground; that Tower defended said suit on the ground that the defendant herein had previously as aforesaid violated the terms of the deed to Nolker, and said defense was sustained by the lower court and the bill dismissed, and the judgment of the lower court was affirmed by this court, and, therefore, the defendant again pleads that the plaintiffs made an election of remedies.

The reply pleads that the deed from Tower to Nolker contained an express provision of re-entry, and was not simply a covenant; admits that the defendant subdivided the 100 feet acquired from Tower, but denies that Tower knew that the same was offered for sale; denies that the improvements on lot 4 of “Compton Heights Addition” were begun or completed in the year 1890, and further denies that the stable erected thereon cost $10,000; denies that Tower had knowledge of the so-called improvements or that he acquiesced therein; avers that plaintiffs acquired the property from Tower by fraud, and denies that Tower or the plaintiffs are estopped from maintaining this action; denies the defense by limitation set up, and also that the plaintiffs have been guilty of any laches; admits that in 1893 Tower subdivided the remaining 510 feet, and avers that he had a right so to do, because defendant had violated the terms in the deed, but denies that the defendant is thereby relieved from the forfeiture under the other terms of the deed; and denies that plaintiffs have elected between the remedies afforded by law.

The case made is this:

Prior to December 10, 1889, George F. Tower owned a tract of land in City Block No. 1366, having a front of 610 feet on the east side of Grand avenue, and extending eastwardly 295 feet.

The defendant corporation owned the land immediately south thereof on the east side of Grand avenue, together with a large amount of other property extending eastwardly. It was engaged in the establishment of a subdivision to be called “Compton Heights,” which was intended as a choice residence district. One Haarstiek was the president of the company, and Julius Pitzman was the manager. Nolker was a director in the company. The defendant desired to sell to Nolker the lot lying immediately south of the Tower property on the east side of Grand avenue and on the north side of Longfellow boulevard. The lot then owned by the defendant had only a front of 118 feet on Grand avenue. Nolker wanted a lot 200 feet square. For the purpose of giving him a lot of that size the defendant procured through Pitzman a conveyance from Tower of the property here in controversy, being 100 feet immediately north of the 118 feet so owned by the defendant. It. was designed that Nolker would erect a handsome residence on the land, but, as his plans were not then fully completed, the defendant agreed with him that if he did not desire to keep the property it would, take it off his hands at the price he paid for it, and, subsequently, it did so. Tower conveyed the property to Nolker by deed, which contained the following provision: “Provided, however, and this conveyance is upon condition, that the grantee herein shall not, nor shall his heirs or assigns, erect or allow to be erected on the premises above described, any dwelling nearer than fifty feet to the east line of Grand avenue. The grantee shall not, nor shall his heirs nor assigns, erect or put upon the Grand avenue front of the premises hereby conveyed, a building of any kind, save and except one dwelling-house and appurtenances, and such dwelling-house shall not cost less than $7,500. The grantee shall not, nor shall his heirs or assigns, erect or permit any business establishment to be erected on the premises hereby conveyed, the property being conveyed for residence purposes only, nor shall he or they create or permit any nuisance to be created or maintained on said premises or any part thereof. In the event of the breach of any of the foregoing conditions, the estate hereby granted and conveyed shall end and the title to the property aforesaid shall forthwith revert to the grantors herein, their heirs and legal representatives. And in consideration of the acceptance of the foregoing conditions by the grantee, and of the purchase money aforesaid, the said grantors, George F. Tower and wife, do by this conveyance subject all property now owned by them in said City Block No. 1366, to the same conditions and restrictions above set forth, so that neither the said grantors will, nor their heirs or assigns shall, hold, use or convey their said property or any part thereof except in conformity with and subject to the same conditions and restrictions as herein stated, and in case of sale, said property shall be sold only in lots of the size of the lot hereby conveyed or larger. ’ ’

Tower had refused to make such a conveyance until he was informed of the name of the buyer and the purpose to which the property was to be put, and made the conveyance upon the information that Nolker desired to improve it and put a very handsome house on it. The price paid for the 100 feet so conveyed was $90 per foot. The price for the 118 feet immediately south of it was $38 per foot. Nolker held the property only twenty-six days, and on the 6th of January, 1890, he conveyed it to Haarstiek, president of the defendant company, who, on the 8th of July, 1890, conveyed it to the company. Both of those conveyances contained similar provisions to that above quoted. As hereinbefore stated, the defendant company platted all its property. It numbered on the plat the 100 feet so purchased from Tower as lot 2 with a front of 100 feet on the east, line of Grand avenue, but the 70 feet, substantially, of the rear of said property was subdivided by the defendant and became parts of lots 3 and 4, that fronted on Longfellow boulevard. On the 6th of August, 1890, the defeu dant conveyed lot 4 of “Compton Heights,” which contained a portion of the 70 feet of the rear end of the lot defendant had so acquired from Tower, to Mrs. Philippine Tinker. The deed to Mrs. Tinker contained no such provision as that hereinbefore set out. Mrs. Tinker immediately commenced the erection of a residence on- lot 4 and completed the same during the year 1890. In July, 1891, Mrs. Tinker built a stable on the .rear of the lot 4 as an appurtenance to the residence. The comer of the house, and perhaps the whole of the stable, was located on the portion of the lot acquired from Tower, which was platted as a part of lot 4 of "Compton Heights. ’ ’ Tower lived in the neighborhood and knew of the subdividing of the lot he had'sold to Nolker, and also of the sale to Mrs. Tinker, and also of the erection of the improvements on that lot. He raised no objections and took no legal steps until the 11th of May, 1893, on which day he enclosed to the defendant a copy of a plat, by which he had subdivided the remaining 510 feet, and notified the defendant that he proposed to sell the lots so subdivided. The subdivision consisted of so dividing the 510 feet front on Grand avenue as to lay out eight lots, having 50 feet, each, front on Grand avenue — one lot having 55 feet on Grand avenue —all having a depth of 140 feet eastwardly, and a private street 50 feet wide projecting eastwardly from Grand avenue to the eastern line of his property. At the rear of the lots fronting on Grand avenue, the plat contained five lots on each side of the private street, having a front of 28 feet, each, by a depth of 130 to 135 feet, with an alley running north and south along the rear of the lots fronting on Grand avenue, and an alley at the rear of each of the ten lots on the private street aforesaid, extending from east to west, and with three lots fronting on Russell, being the street immediately north — two of them having a front of 50 feet and one a front of 40 feet, and all having a depth of 150 feet. Immediately thereafter, to-wit, on the 22nd of July, 1893, the defendant instituted a suit in equity to restrain Tower from subdividing said 510 feet into smaller lots than 100 feet front each. The trial court dismissed the bill and upon appeal by the plaintiff therein to this court, the judgment of the circuit court was affirmed, on the 12th of November, 1900, in an opinion reported in 158 Mo. 282, where will also be found a descriptive plat of a portion of “Compton Heights,” of lot 4 thereof, of the property here involved, and of the remaining 510 feet of Block No. 1366 so subdivided by Tower.

Thereafter, on the 18th of January, 1901, the plaintiffs, as the executors under the will of George P. Tower, and as devisees under the will, instituted this action in ejectment to recover the said 100 feet so sold originally to Nolker, except the portion which was thrown into lot 4, so sold by the defendant to Mrs. Tinker, and except the portion which was thrown into lot 3 of “Compton Heights.” The theory of the petition is that by subdividing the 100 feet sold by Tower to Nolker so as to take the 70 feet, substantially, of the rear thereof and add it to lots 3 and 4 of “Compton Heights, ’ ’ and by the erection of the stable on such portion which became a part of lot 4 of “Compton Heights, ’ ’ the defendant was guilty of a breach of the condition subsequent contained in the deed from Tower to Nolker, which entitles -the plaintiffs to re-enter and recover all of the property originally conveyed by Tower to Nolker, except about 70 feet of the rear thereof which had been added to and platted as a part of lots 3 and 4 of “Compton Heights.” The trial court entered a judgment for the defendant on the ground, as expressed in the memorandum opinion, that the plaintiffs had elected between the remedies afforded by law and had chosen to regard the whole limitation and obligation of the deed from Tower to Nolker as abandoned and abrogated as to both parties thereto, and, hence, was not entitled to maintain this action. From this judgment the plaintiffs appealed.

I.

This is the second appearance of a controversy arising out of the conveyance' by Tower to Nolker. The question was formerly presented to this court in the shape of a bill in equity by the present defendant against the present plaintiffs to enjoin them from subdividing the 510 feet into smaller lots than 100 feet front each. That case is reported in 158 Mo. 282. This court then fully considered the relative rights of the parties arising out of that deed, and held (1) that the obligation, not to subdivide into lots of less than 100 feet front each, was a mutual obligation, notwithstanding that upon the face of the deed the obligation not to so subdivide seemed to be obligatory on one party only, because the manifest intention of the parties was to make that obligation a correlative and mutual obligation; (2) that conceding that Tower disregarded the obligation so imposed on him not to subdivide the 510 feet, nevertheless, the defendant in this case (the plaintiff in that case) was not entitled to enjoin Tower from so doing, because it had itself, prior to that time, subdivided the 100-foot lot it had acquired from Tower, and, therefore, it did not come into a court of equity with clean hands, and could not maintain an action for an injunction against Tower. Incidentally, it was said in that case, that Mrs. Tinker had no right to build a stable on a lot which was expressly limited to a residence and appurtenances thereto; and, incidentally, also, it was said, that the conduct of Tower in subdividing the remaining portion of the tract did not create an estoppel which would prevent him from pleading the prior subdivision of the 100 feet by the defendant company.

The result reached in that case was unquestionably correct. The defendant company was guilty of the first wrong in throwing 70 feet of the rear of the premises acquired from Tower into lots 3 and 4 of “Compton Heights. ’ ’ That act was a violation of the terms of the deed from Tower to Nolker. Of course, therefore, the company could not thereafter object, successfully, to Tower subdividing the 510 feet. Likewise there was no element of estoppel as against Tower which would take away his right to insist upon such prior breach of the terms of the deed by the company.

The question of whether the provisions of the deed constituted a condition subsequent, for the breach of which Tower would be entitled to re-enter and re-take possession of the premises, or whether they constituted, simply, covenants, for the breach of which Tower was entitled to recover damages, was not involved or adjudicated in that case. Neither was the question, whether, under the facts in judgment in that case, Tower was entitled to re-enter and recover possession, nor whether, if so entitled, that right was barred by limitation, nor, yet, whether Tower was precluded from so doing by having elected to pursue the other remedy of also subdividing his 510 feet, involved or decided in that case. Those are the three principal and decisive questions arising for adjudication in this case.

Defendant company acquired title to the property in controversy in July, 1890, and immediately thereafter platted the whole tract, including the 100 feet acquired by mesne conveyances from Tower. In so platting and subdividing, the company threw the 70 feet of the rear of the property acquired from Tower into lots 3 and 4 of “ Compton Heights. ’ ’ That constituted a breach of the terms of the deed. The company then sold lot 4 of “Compton Heights,” including a part of the 70 feet thus segregated from the property acquired from Tower, to Mrs. Tinker, and during the year 1890 she erected a residence thereon, one corner of which rested upon the portion of said 70 feet embraced in lot 4. Thereafter, in July, 1891, Mrs. Tinker erected a stable, which was located largely upon such portion of said 70 feet so constituting a part of lot 4. Tower took no steps whatever to prevent the company from so doing or to prevent Mrs. Tinker from so doing until May 11, 1893, when he caused the 510 feet to be subdivided as hereinbefore shown, recorded the plat, and enclosed a copy thereof to the defendant company, with a notice that he had so done and that he intended to sell the lots so subdivided into lots less than 100 feet front each. If, instead of so doing, Tow;er had then elected to treat the act of the defendant company in so subdividing the 100 feet he had conveyed to- Nolker, and the act of Mrs. Tinker in erecting a stable on a portion thereof, as a breach of the terms of the deed and had brought suit in ejectment to recover the possession of the property sold, or so much thereof as remained after the 70 feet had been segregated and'added to lots 3 and 4 of “Compton Heights,” a very different question would have been presented from that involved in this case. In such a contingency, the question whether the provisions of the deed prohibiting subdividing, etc., constituted a condition subsequent or a mere covenant, would have been presented for adjudication, so also the question of whether the erection of a stable on a portion of the premises by Mrs. Tinker came properly within the provisions of the deed would have been presented for adjudication. But no such questions can properly arise in this case, for, conceding all that the plaintiffs herein claim with respect to the true construction of the provisions of the deed, the fact still remains that when the company so subdivided the portion of the 100 feet acquired from Tower, two remedies were afforded Tower by law for the correction and compensation to him of the wrong- charged to have been done by the company, to-wit: (1) to bring an action of ejectment and recover the premises, and (2) to treat the terms of the deed as violated by the company, and, therefore, as abrogated so far as they imposed a servitude on the remaining- 510' feet, and, accordingly, of subdividing the 510 feet in any manner he saw fit. Tower, or the plain-, tiffs herein, elected to take the second remedy indicated, and, accordingly, subdivided the 510 feet in the manner above indicated. By so doing, he or they precluded themselves from afterwards asserting a right to vindicate the wrong- done them by bringing an action in ejectment. [Nanson v. Jacob, 93 Mo. l. c. 344; Bensieck v. Cook, 110 Mo. 173; Lilly v. Menke, 143 Mo. l. c. 144; Stone v. Cook, 179 Mo. l. c. 540; Dry Goods Co. v. Warden, 151 Mo. 578; Bigelow on Estoppel (5 Ed.), 673; 7 Eney. Pl. and Pr., 361; Commission Co. v. Railroad, 126 Mo. l. c. 349.]

In the case last cited it was said: “It is well-settled law that where a party has the right to pursue one of two inconsistent remedies, and he makes his'election, and institutes his suit, in case the action thus begun is prosecuted to final judgment, or the plaintiff has received anything of value under a claim thus asserted, he cannot thereafter pursue another and inconsistent remedy. ’ ’

Bigelow on Estoppel (5 Ed.), 673, states the rule thus: “A party cannot either in the course of litigation or in dealings in pais occupy inconsistent positions. Upon that rule election is founded; ‘ a man shall not be allowed,’ in the language of the Scotch law, ‘to approbate and reprobate. ’ And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts; the election, if made with knowledge of the facts, is in itself binding— it cannot be withdrawn without due consent; it cannot be withdrawn though it has not been acted upon by another by any change of position.”

The Eney. of Pleading and Practice, volume 7, page 361, states the rule in this way: “Whenever the law supplies to a party two or more methods of redress in a given case, based upon inconsistent theories, . . '. the party is put to his election, and his choice of either is a bar to his resort to the other.”

Tower and the plaintiffs were fully aware of all the acts done by the defendant company and by Mrs. Tinker at the time they were done. They were, therefore, put to their election — whether they would sue in ejectment or treat the provisions and restrictions of the deed as abrogated and the servitude imposed on the remaining land by the deed as released, and they elected to take the latter course. They cannot now be heard to also maintain an action in ejectment to recover the premises. This conclusion makes it unnecessary to consider whether the terms of the deed constituted mere covenants or conditions subsequent, for it assumes the rights of the plaintiffs to be as strong as the plaintiffs contend they are.

II.

The defendant company violated the terms of the deed in July, 1890. The plaintiffs’ cause of action accrued a.t that time. This action was not instituted until January 18, 1901. The action was therefore barred by the provisions of section 4262, Revised Statutes 1899. The excuse offered by plaintiffs for not sooner instituíing this action, that they waited until the determination of the injunction suit, does not alter the case. On the contrary, it emphasizes the situation, for, if the two rights — the one to assert the right to regard the terms of the deed as abrogated so far as the 510 feet is concerned, which the plaintiffs did in the injunction suit, and the other to institute an action in ejectment for the recovery of the property — were not inconsistent rights, as the plaintiffs claim, then the pendency of the injunction suit was no bar to the institution of an ejectment suit. On the other hand, if the two' rights or remedies were inconsistent, then it devolved upon the plaintiffs to elect which of the remedies they would take, and this duty or right to elect could not in any manner be impaired or affected by the fact that the company had instituted the injunction suit against them.

The plaintiffs cannot be heard to say, as they ask to be in this case, that they have had a right to waive the first breach of the terms of the deed by the company in subdividing the lot sold by Tower to Nolker, and to insist upon the second breach of the terms of that deed by Mrs. Tinker in building a stable on a part of the lot, and thus to avoid the effect of the Statute of Limitation upon their right of action, for throughout the whole of the injunction suit these plaintiffs relied up on the first breach by the defendant of the terms of the deed in so subdividing the 100-foot lot, and that case was decided in their favor upon that ground. Having so treated that act of the defendant, the plaintiffs cannot now be heard to say they waive it or that they have waived it; for their conduct in the injunction suit was in no sense of the word a waiver. On the contrary, the plaintiffs acted upon the first breach, subdivided the 510 feet, offered it for sale, and have derived all the benefits belonging to the land which attached in the absence of the restrictions and servitude placed upon it by the deed from Tower to Nolker. This action is, therefore, barred by the Statute of Limitations.

For these reasons the judgment of the circuit court is affirmed.

All concur, except Brace, P. J., absent.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    MARY McCARTY v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    December 21, 1905.
    1. NEGLIGENCE: Death of Husband: Verdict for $500: New-Trial. A statutory suit for $5,000 against a street railway company for negligently placing an obstruction in a public street, which resulted in the death of plaintiff’s husband, who was a thoroughly upright and skilled worker, earning $90 per month, resulted in a verdict of $500 for her. Held, that the trial court did not err in setting that verdict aside on the sole ground that the award of damages was inadequate.
    2. VERDICT: Province of Jury: Discretion of Judge. A jury may not give any verdict it pleases. Its verdict is subject to the approval of the trial judge, who may exercise a sound judicial discretion in the matter, and unless he clearly abuses-that discretion his act in granting one new trial will not be accounted error.
    3. -: Law Case: Advantage of Trial Judge. The trial judge stands peculiarly close to the fountain-head of justice. To him it is given to hear the intonation of the voice of the witness, to see his manner, his cast of countenance, the glance of his eye, the behavior of the jury, their intelligence, their attention and the whole network of small incidents creating an atmosphere 'about the trial, none of which can be preserved in a bill of exceptions.
    Appeal from St. Louis City Circuit Court . — Eon. D. D. Fisher, Judge.
    Affirmed.

      Boyle <& Priest, George W. Easley and Ediuard T. Miller for appellant.
    The court erred in sustaining plaintiff’s motion for a new trial, and in granting plaintiff a new trial of the cause. See. 2866, R. S. 1899; Pritchard v. Hewitt,. 91 Mo. 547; Leahy v. Davis, 121 Mo. 227; Dowd v. Air Brake Go., 132 Mo. 579; Railroad v. Judd, 20 Ky. L. 1978; 1 Joyce, Damages, secs. 511, 527; 2 Graham & Waterman on New Trials (2 Ed.), 451. Plaintiff’s instruction as to the measure of damages is as follows: “If the jury find for the plaintiff they shall assess her damages at such a sum as they may believe from the evidence will be a fair compensation to her for the loss of the support, care and maintenance of her husband, caused by his death, not exceeding $5,000.” Section 2866, Revised Statutes 1899, leaves the amount of damages (within $5,000) to be fixed by the jury as they deem fair and just with reference to the necessary injury, having regard to the mitigating or aggravating circumstances attending the injury. There can be no certain rule of admeasurement for their guidance. The amount is peculiarly within their province, and their verdict should not be disturbed unless it be shown conclusively to have resulted from passion or prejudice, misconduct or palpable mistake. Nothing of this character appears in the record. The verdict is not a verdict for nominal damages, but a verdict for substantial damages and such a verdict as was within the province of the jury to make. The presumption is that it represents their honest judgment as to the amount plaintiff should recover, and in such cases, where the damages are not clearly defined, it is the policy of the law that the jury’s estimate rather than the equally undefined estimate of a judge should prevail. In order to overcome this presumption and policy, it is necessary that prejudice or passion, misconduct or mistake on the part of the jury should be shown, and in the absence of such showing it was error" for the court to substitute its judgment for that of the jury. 1 Joyce on Damages, sec. 527; 1 Gra. & Wat. on New Trials (2 Ed.), 451.
   LAMM, J.

Cornelius McCarty was the husband of plaintiff, concededly performing his marriage contract and marital duties pertaining to her care and support. He was an employee of the St. Louis Fire Department and, at the time in hand, the driver of truck No. 12, said truck being a long-coupled wagon, twenty-seven feet between axles, used for carrying ladders to a fire. His age was forty-nine years and he was earning “eighty-nine dollars and a dime” per month (his real salary being $90 per month, but ninety cents were' deducted for a firemens’ pension fund). His health was excellent, his sobriety and industry unquestioned, and he is outlined by the record to be one- of the best firemen in the department — an all ’round good man.

At two o’clock in the morning of December 15, 1902, a night of storm and gloom, as described by the witnesses, with sleet and drizzling rain falling, a fire alarm was sprung and McCarty started with his truck to the fire. While in the line of his duty, going down grade on Florissant avenue at a rapid speed — a “fire-alarm” speed — but having his horses under control, his wagon struck an obstruction in the street, and he was thereby pitched forward and down, striking on his head, and instantly killed. The obstruction consisted in a temporary switch, with a frog appendage laid on top of appellant’s track and the street grade, and intended for temporary purposes, in that repairs on a bridge some distance away were in progress and the two street railroad tracks, laid on Florissant avenue, one an outgoing and the other an incoming track, were by said switch temporarily converted into one track for a certain distance, over which both incoming and outgoing ears passed.

The switch was about fifty feet long and arose above the track — some of the witnesses say one and one-fourth inches, some say two inches, and some four inches. The obstruction commenced thin and the cars mounted the switch, gradually feeding up to the full height of the obstruction above the surface of the street. However, this may be, a Y-shaped, raised obstruction was formed, against or in which a wheel of McCarty’s truck struck with the aforesaid result.

An ordinance of the city of St. Louis was pleaded in the petition and introduced in evidence which, mter alia, provided that “and every person who shall occupy or cause to be occupied any portion of any public street, alley, highway or public place with . . . any obstruction, shall cause one red light to be securely and conspicuously posted on or near such . . . obstruction; provided such obstruction does not extend more than ten feet in length, and if over ten feet and less than fifty feet, two red lights, one at each end, shall be so placed, . . . and shall keep such lights burning during the entire night. ’ ’

Evidence, hopelessly conflicting, was introduced pro and con on the character and location of the lights kept hy appellant at this obstruction. It is uncontradicted that a small shanty was close by, intended for protection of the employee attending to the lights and signaling cars, against the weather. Some of the evidence was to the effect that there was no red light displayed at all, but that one or two pale or white lights were displayed. Some of the evidence indicated that there was one red light displayed, but that it was, at the time, over close to said shanty and quite a distance from the obstruction. Some of the evidence indicated there were two pale or white lights, one at each end of the switch, and another, a red light, about midway between the two railroad tracks and the termini of the switch. The evidence on the size and distinctness of these lights was also conflicting. None of the witnesses saw two red lights, as provided by ordinance when an obstruction was over ten feet long. None of the evidence indicated that the red light displayed was at either end of the obstruction; and, furthermore, the evidence indicated that the obstruction had existed fox- some time, and that the usual danger signal in the city of St. Louis was a red light, and, moreover, tended to show that a white light did not have a danger significance.

This suit is based upon Revised Statutes 1899, sections 2865 and 2866, the latter of which provided that “the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessaiy injury resulting from such death . . . and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default;” and the city of St. Louis, .as well as the St. Louis Transit Company, were made parties defendant.

The defense interposed by appellant was a general denial, fortified by a plea of contributory negligence.

On uncriticised instructions the jury returned a verdict acquitting the city, but against appellant company for $500, which verdict was set aside on plaintiff’s motion for a new trial, the reason assigned by the learned trial judge being that the damages awarded were inadequate.

Prom the order granting a new trial the St. Louis Transit Company appealed.

There is no brief by respondent. By that of appellant only one insistence is made, to-wit, that the verdict was a substantial one — a verdict the jury was authorized to render and which, to attaint or disturb, was error, nisi, because thereby appellant is subjected to a new inquisition of damages and placed in danger of being mulcted in $5,000.

Is this assignment of error well made? We think not. Because: neither side asked nor did the court give any instruction on mitigation or aggravation, as seems to be required when those elements are in the case and presented to the jury. [Rains v. Railroad, 71 Mo. 164; Nagel v. Railroad, 75 Mo. 653; Nichols v. Winfrey, 79 Mo. 544; Parsons v. Railroad, 94 Mo. 286.] A natural inference from this omission is that in the opinion of the trial court, as well as in that of the trial counsel, the case admitted of no such instruction. A painstaking and close examination of the evidence leads us to sympathize with that view. This being so, and the case being admittedly one for the jury, it left the case, so far as this appellant is concerned, stand or fall on its plea of contributory negligence. Now, it is not contended here that such plea should be sustained, under the facts, as a matter of law; nor is it contended by appellant that the verdict is a nominal verdict, that is to say, practically one for the defendant company, except on a matter of costs; nor is it contended that the verdict should have been for the defendant company — - the stout and sole insistence of appellant, as said, is that the verdict was substantial, was right, and that it was reversible error to meddle with it.

Considering the case from this point of view, it must not be lost sight of that a jury may not' give any verdict it pleases. Its verdict is first subject to the trained judicial discretion of the trial judge, and his judicial discretion, so exercised upon the verdict, will not be interfered with on appeal except it be unmistakably unwisely exercised. [Bank v. Armstrong, 92 Mo. l. c. 279, et seq; Bank v. Wood, 124 Mo. l. c. 76-7; Kuenzel v. Stevens, 155 Mo. l. c. 285; McCloskey v. Pulitzer Pub. Co., 163 Mo. l. c. 33, and cases cited.] The wise exercise of this judicial discretion on the part of circuit judge has always been encouraged by this court — a discretion exemplified by Justice Grier in his celebrated dictum that “it takes thirteen men in this court to steal a man-’s farm; twelve in the box and one on the bench. ”

The trial judge stands peculiarly close to the fountain-head of legal justice. He is the high priest presiding at the very altar of the temple. To him it is given to hear the intonation of voice of a witness, to see his manner, his cast of countenance, the glance of his eye, the behavior of the jury, their intelligence, their attention and the whole network of small incidents creating an atmosphere about a case and tending possibly to a perverted result or otherwise, none of which can be preserved in the bill of exceptions and sent here, and in him, therefore, should exist the courage to prevent a miscarriage of right. His viewpoint is entirely different from that of an appellate court. See the animated language of Wagner, J., in Reid v. Insurance Co., 58 Mo. l. c. 429 et seq.

The views of Gamble, J., speaking for this court in Garneau v. Herthel, 15 Mo. 191, are apposite. Thus: “All persons, familiar with trials, must know that it is utterly impossible to bring before this court, upon paper, a real representation of the trial as it took place. The manner, the temper, the character of witnesses, as known to the jury, can not be spread upon paper; and the words of a witness, in whose testimony neither the jury nor the court had the slightest confidence, will read as well, and appear entitled to the same confidence when written upon the record, as would the language of the most impartial, upright witness in the world. We can not suppose that the courts, trying causes, are deficient in the firmness necessary to set aside verdicts when,” etc.

Happily, by the aid of a jury’s discretion to start with, tempered and controlled by the discretion of the trial judge, and afterwards supervised by the discretion of the appellate courts, wrongs may be ultimately righted, so far as may be, in the affairs of men. The bitter notion of Lord Camden relating to judicial discretion, to-wit: “The discretion of a judge is the law of tyrants ; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable,” is not the modern view, if applied to judicial discretion in supervising verdicts. The modern view is that by the discretion of the jury, pins the discretion of the trial judge, plus the discretion of the appellate court, the “golden mean,” referred to by Horace and Publius Syrus and dreamed of by all good philosophers, may be somewhat approached.

In this case, having found that the defendant was guilty of negligence, and that deceased was not guilty of contributory negligence, the jury placed an estimate on the injury done to Mrs. McCarty in the loss of a husband in the prime of life, who was supporting her, who had an earning capacity of $90 a month, who wasno drinking trifler, who was industrious and stood well as a citizen — for all of these solaces lost — $500. The trial judge thought a citizen of that character was worth more as the head of a family and a husband, and so do we.

Appellant relies on three cases: Pritchard v. Hewitt, 91 Mo. 547; Dowd v. Air Brake Co., 132 Mo. 579; and Leahy v. Davis, 121 Mo. 227. But none of these cases are kin to the case at bar.

The Pritchard case was a malicious assault and shooting. The defense, son assault demesne. The verdict, one dollar. In that case, it must be noted, the trial judge refused to grant a new trial, and Brace, J., speaking to the point said: “Nevertheless, in that record, we can see how the jury might well, from the evidence, have found that, although the defendant was not justified in his action, yet that the plaintiff also was not without fault, and come to the conclusion that, under all the circumstances, it was not a case for substantial damages. ’ ’

In the Dowd case, there was a compound fracture of the leg and a verdict for $200. In that case the trial court refused to interfere and the refusal of this court to interfere was based upon the ground that the trial court has better opportunity to know whether the verdict should be set aside than this court.

In the Leahy-case a minor was killed. He was sixteen years and ten months old. Suit was brought by the parents. No evidence was given of the boy’s health, or characteristics, or adaptation to business, or habits of industry, or economy. The jury were not advised whether he contributed to the support of the family or whether he lived with his parents or boarded. All that appeared was his age and the fact that for two or three months he had earned $7.50 a week. The recovery was $175. The evidence furthermore indicated that the boy was guilty of “extreme carelessness” in walking into an elevator shaft.

Again: This court will not interfere with the discretion of the trial court in granting one new trial on a question of fact, except in a case where the plaintiff would not be entitled to any recovery. [Haven v. Railroad, 155 Mo. 216.]

The judgment and order of the court setting aside the verdict and granting Mrs. McCarty a new trial is affirmed.

All concur, except Brace, P. J'., absent.


author: MARSHALL, J.

text:
    TRI-STATE AMUSEMENT COMPANY, Appellant, v. FOREST PARK HIGHLANDS AMUSEMENT COMPANY et al.
    Division One,
    December 21, 1905.
    1. FOREIGN CORPORATION: Doing Business Without License: Contracts: Breach: Subsequent License. A foreign corporation which, has not paid the incorporation taxes required by the statute and been licensed to transact business in this State, cannot make a legal contract in this State to transact business in this State, and after the contract has been in part performed, then comply with the law governing foreign corporations and then maintain a suit for the breach of the contract. Such a contract is invalid, and the subsequent compliance with the law does not entitle the foreign company to maintain a suit for a breach thereof.

      2. -: -: -: Void. The statute which prohibits foreign corporations from doing business in this State without first complying with the law requiring the payment of incorporation taxes and obtaining a license, as effectively makes void a contract entered into by such foreign company as if the statute had in terms declared such a contract to be void. An unlawful act is itself void.
    3. -: -: -: Subsequent License: Case Stated. Plaintiff, a foreign corporation, entered into a contract in this State for the giving of theatrical exhibitions with the owner of amusement grounds, for fifteen weeks of each five years. After the contract had been performed for a few months, the owner of the grounds refused to permit plaintiff to longer use them. Thereafter plaintiff complied with the statutes requiring foreign corporations desiring to transact business in this State to pay the same incorporation taxes required of domestic corporations and secured a license as a resident foreign corporation, etc., and then instituted this suit, alleging a breach of the contract, and loss of profits due to the ouster. Held, that the contract was invalid, and plaintiff’s petition, having alleged these facts, did not state a cause of action.
    4. -: -: Contracts Made in Other States: Comity. This is the meaning of the statutes as to contracts entered into in this State for the transaction of business in this State. But contracts entered into by foreign corporations in the States of their domicile, with citizens of this State, if valid - according to the laws of the State of their domicile and not prohibited by the laws of this State, are valid contracts, and will be enforced in this State as a matter of comity, and foreign corporations are not required to comply with .the statutes in reference to paying incorporation taxes, etc., in order to maintain actions on such contracts.
    Appeal from St. Louis City Circuit Court. — íío» John A. Blevins, Judge.
    Aeeirmed.

      John D. Johnson aud Virgil Rule for appellant.
    (1) Our laws prescribing conditions upon which foreign corporations are authorized to transact business in this State do not render contracts void, made by a non-complying corporation, under the terms of which business is to be transacted in this State. R. S. 1899, secs. 1024-5-6; Chicago, etc., Co. v. Sims, 101 Mo. App. 578; Hogan v. City, 176 Mo. 149; Carson-Rand v. Stern, 129 Mo. 381; Ins. Co. v. Railroad, 149 Mo. 178; Columbus Co. v. Walsh, 18 Mo. 230; Clark v. Ins. Co., 19 Mo. 54; Fritts v. Palmer, 132 U. S. 282; Ins. Co. v. Rigers, 47 Pac. 848; Jarvis-C'onldin v. Wilhoit, 48 Fed. 514; Utterly v. Mining Co., 4 Colo. 369; Kindell v. Beck, 19 Colo. 310; Pech. Mfg. Co. v. Graves, 6 S. Dak. 504; Ins. Co. v. Overholt, 4 Dill. 287; Am. Loan Co. v. Railroad, 37 Fed. 242; Rogers, etc., Co. v. Simmons, 155 Mass. 259; Behler v. Ins. Co., 68 Ind. 347; Ins. Co. v. Wellman, 69 Ind.. 413; Jarvis v. Willheit, 84 F. R 516; Buffalo Zinc Co. v. Crump (Ark.), 69 S. W. 575; Chat.' R Co. v. Evans, 66 F. R. 809; Security Co. v. Elbert, 153 Ind. 198; State Mut. v. Brinkley, 61 Ark. 1; Dearborn v. Augustine, 5 Wash. 67; Whitman v. Strand, 8 Wash. 647; Edison Co. v. Railroad, 8 Wash. 370; North W. Mut. Co. v. Overholt, 4 Dill. 287; King v. Nat. Min. Co., 4 Mont. 1; Garfieíd v. Hammer, 6 Mont. 53; Washburn Mill Co. v. Bartlett, 3 N. D. 138; People v. Hawkins, 106 Mich. 479; American Co. v. East Co., 37 F. R. 242; Wright v. Lee, 2 S. D. 596; Ganser v. Ins. Co., 34 Minn. 372; The Manistee, 5 Biss. 381; Pennypacker v. Capital Co., 80 la. 56; Phoenix Co. v. Penn. Co., 33 N. E. 970; Toledo Co. v. Thomas, 33 West Ya. 566; Germania Co. v. Curran, 8 Kan. 1; Rockford Co.v. Rogers, 47 Pac. 848; 5 Thompson, Corp., sec. 757. (2) Compliance with the law subsequent to the date of a contract gives the company a right of action; and this, too, when the law contains the provision that a non-cómplying corporation cannot maintain an action. Cases supra; Dear-man Foundry Co. v. Augustine, 5 Wash.. 57; Huttig Mfg. Co. v. Hotel Co., 6 Wash. 122; Goddard v. Cref eld Mills, 21 C. C. A. 530; Simplex Dairy Co. v. Cole, 86 Fed. 739; .Eastern B. & L. v. Bedford, 88 Fed. 7; Gas Pipe Co. v. Connell, 33 N. Y. Supp. 482; Toledo Tie Co. v. Thomas, 33 W. Ya. 566; Wood Mowing Co. v. Colwell, 54 Ind. 270; Sing. Co. v. Brown, 64 Ind. 548; Daly v. Ins. Co., 64 Ind. 1; Western Mills Co. v. Cooper, 34 Pac. 774; National v. Pursell, 92 Mass. 251. (3) Eespondents having contracted with appellants, are es-topped from questioning appellants’ legal capacity to transact business in the State. La Prance Co. v. Mt. Vernon, 37 Pac. 287; Savings Co. v. Elbert, 153 Ind. 198; West. Land Co. v. Eailroad, 161 Mo. 604; 4 Thomp. Corp., sec. 5275; 4 Am. and Eng. Ency. Law, 198-9, n. 1; 2 Morawetz, Corp., secs. 750-53; 1 Beach, Corp., sec. 13.

      E. C. Grow and Rassieur, Sclmurmacher S Rassieivr for respondents.
    A foreign corporation which is engaged in transacting business in this State, without having complied with our laws respecting foreign corporations, cannot enforce an executory contract growing out of such unlawful business. The cause of action is void. A subsequent compliance with our statutes will not legalize such a transaction. McCanna v. Trust Co., 24 U. S. C. C. A. 11 and note p. 13; In ré Comstock, 3 Sawy. 218; Ú. S.> Eubber Co. v. Shoe Co., 132 Fed. 198; Heilman Brg. Co. v. Peimeisl, 85 Minn. 121; Ins. Co. v. Harvey, 11 Wis. 394; Assur. Co. v. Eosenthal, 55 111. 85; Hoffman v. Banks, 41 Ind. 1; Dudley v. Pinckard, 87 Ala. 431; Bank v. Page, 6 Ore. 431; Thorne v. Ins. Co., 80 Pa, St. 15; Lumber Co. v. Thomas, 92 Tenn. 587. A contract entered into in violation of statute is void. Downing v. Einger, 7 Mo. 585; St. L, F. Assn. v. Carmody, 151 Mo. 573;; Live Stock Assn. v. Cass L. & C. Co., 138 Mo. 406; State ,ex rel. v. Dallas Co. Ct., 72 Mo. 331. No estoppel can be urged against the other contracting party who refuses to perform while the illegal contract is still executory. Wood v. Kansas City, 162 Mo. 311; Nichols v. Bank, 55 Mo. App. 81.
   MARSHALL, J.

It is not altogether clear whether this action is intended as a proceeding in equity for an accounting and to recover the amount found to- he due, or whether it is an action at law for damages; and it is not necessary to determine the character of the action, for the result must be the same whichever view be taken of the case.

The trial court sustained a demurrer to the petition, and the plaintiff appealed.

The material allegations of the petition are: that the plaintiff company is a corporation organized under the laws of the State of Illinois; that on the 5th of April, 1898, the defendant company had a leasehold interest in and to certain real estate situated in the city of St. Louis and lying just south of Forest Park, on which it maintained a pleasure resort, with pavilion, theater, stage and other buildings used for giving theatrical performances; that the stage faced the pavilion and the latter was surrounded by a railing-, in which were- more than one thousand seats for persons attending the performance, and which are hereafter referred to as reserved seats; that back of the reserved seats there was an open space for chairs for like purposes, but without being inclosed with a railing; that on the 5th of April, 1898, the plaintiff entered into a written contract with the defendant company and one John D. Hopkins, by which the defendant company agreed to furnish to the plaintiff the pavilion, theater and reserved seats for the purpose of giving theatrical performances therein, beginning on the 2nd of May, 1898, and expiring fifteen weeks thereafter, the performances to be daily performances, with Wednesday; Saturday and Sunday matinees; that the plaintiff was to furnish the performances, do certain advertising, and to receive the twenty-five cents per person paid for admission to the reserved seats, and one-half of the ten cents per person charged for admission to the unreserved seats; and, if the amount so received by plaintiff did not equal $1,200 per week, the defendant was to make up the deficit; that settlements on account of the twenty-five cents admission should he made each Tuesday, and the settlements for the one-half of the ten cent admissions were to be made daily; that the defendant Hopkins was to act as manager of the theatrical performances; and that the defendant company was to have the right to sell wines, liquors and other refreshments anywhere on the grounds, including the space set apart for reserved seats; that, pursuant to the contract, plaintiff company entered upon the performance thereof and gave theatrical performances at the times specified until or about the 10th of September, 1898, when the defendant company refused to allow the plaintiff company to further perform the conditions of the agreement, and has ever since so refused; that the defendant company knew, when it entered into the contract, that the agreement between plaintiff and said Hopkins was, that the plaintiff was to pay all the expenses incident to the contract on its part and be entitled to all the profits realized therefrom, and that thereafter, to-wit, on August 29, 1898, for a valuable consideration Hopkins sold and assigned to the plaintiff all of his interest in said contract. The petition then charges that the defendant company was guilty of a breach of its contract on the 10th of September, 1898, by refusing to allow the plaintiff to carry out the contract, and by entering into an agreement with the defendant Hopkins for the purpose of collusively and fraudulently ousting and excluding plaintiff from the premises, and preventing it thereafter from giving theatrical performances; and further agreed with Hopkins to give such performances itself under the directions and management of Hopkins. It is further stated that the plaintiff is unable to state the profits realized by the defendants from the performances given after the 10th of September, 1898; but it is averred on information and belief that the profits amounted to $30,000, and that the plaintiff has been denied that sum.

The prayer of the petition is, that an accounting be taken and that plaintiff have judgment against the defendants for the damages so ascertained. The, petition further alleges, that the contract was to last during the whole term of the lease that the defendant company had on the premises, which would expire on the fourth day of March, 1903. The suit was instituted on the 16th day of August, 1899. The petition further alleges, that on the 14th of April, 1899, it complied with the laws of this State governing foreign corporations, and was duly authorized by the laws of this State to do business in this State.

The defendants demurred to the petition on three grounds, to-wit:

1. Because the petition does not state facts sufficient to constitute a cause of action.

2. Because the petition does not state facts sufficient to entitle plaintiff to any equitable relief.

3. Because there is a defect of parties plaintiff, in this, that Hopkins was not made a plaintiff in the action.

I.

The decisive question in this case for determination is, as to the validity of the contract upon which the action is based.

The plaintiff is a non-resident corporation. At the date of the- contract it had not complied with the laws of this State regulating the right of foreign corporations to do business in this State. It transacted business in this State under the contract from the 22nd of May until the 10th of September, 1898. During that time it never complied with the laws of this State relating to foreign corporations. Before the institution of this suit, to-wit, the 14th of April, 1899, the plaintiff complied with the laws of this State. The question, therefore, is, whether such compliance before suit brought but after the contract was entered into and after the plaintiff had transacted all of the business under the contract until prevented from further doing so by the defendant, affects the validity of the contract as to the business done and to be done, or whether it only affects the remedy. The question under consideration must be determined upon a construction of the act of 1891 (Laws 1891, p. 75), now sections 1024, 1025 and 1026, Revised Statutes 1899.

Section 1024 provides, in substance, that every corporation for pecuniary profit formed in any other State, territory or country, “before it shall be authorized or permitted to transact business in this State, or to continue business therein if already established, shall have and maintain a public office or place in this State for the transaction of its business, where legal service may be obtained upon it, and where proper books shall be kept to enable such corporation to comply with the constitutional and statutory provisions governing such corporation; and such corporation shall be subjected to all the liabilities, restrictions and duties which are or may be imposed upon corporations of like character organized under the general laws of this State, and shall have no other or greater powers,” etc.

Section 1025 provides that, “Every company incorporated for purposes of gain under the laws of any other state, territory or country, now or hereafter doing business within this State, shall file in the office of the Secretary of State a copy of its charter or articles of incorporation, or, in case such company is-incorporated merely by a certificate, then a copy of its certificate of incorporation, duly certified and authenticated by the proper authority; and the principal officer or agent in Missouri of said corporation shall make and forward to the Secretary of State, with the articles or certificate above provided for, a statement duly sworn to of the proportion of the capital stock of the said corporation which is represented by its property located and business transacted in this State, and the corporation shall pay into the treasury of this State upon the proportion of its capital stock represented by its property and business in Missouri, incorporating taxes and fees equal to those required of similar corporations formed within and under the laws of this State.” It further provides that, “Upon compliance with the above provisions by said corporation, the Secretary of State shall give a certificate that said corporation has duly complied with the laws of this State, and is authorized to do business therein, stating the amount of its entire capital and of the proportion thereof which is represented in Missouri,” etc. The section contains other provisions not necessary to be referred to here.

Section 1026 provides that, every such corporation for pecuniary profit, organized under the laws of another State, now doing business in or which may hereafter do business in this State, which' shall neglect or fail to comply with the conditions of this law, shall be subject to a fine of not less than one thousand dollars, to be recovered before any court of competent jurisdiction, and it is made the duty of the Secretary of State to report such failure to the prosecuting attorney of the county, who is required to institute proceedings to recover the fine. The section further provides, “In addition to which penalty, on or after the going into effect of this act, no foreign corporation, as above defined, which shall fail to comply with this act, can maintain any suit or action, either legal or equitable, in any of the courts of this State, upon any demand, whether arising out of contract or tort: Provided, that the provisions of this section shall not apply to railroad companies which have heretofore built their lines of railway into or through this State; nor to ‘drummers’ or traveling salesmen soliciting business in this State for foreign corporations which are entirely non-resident.”

Section 1027 exempts insurance companies from the operation of this statute, for the reason, manifestly, that such companies are controlled and regulated by ether provisions of the statutes.

These statutory provisions .have undergone judicial determination in this State. In Williams v. Scullin, 59 Mo. App. 30, the St. Louis Court of Appeals, speaking through Rombauer, J., held that a contract made and to be performed in this State by a foreign corporation which had failed to comply with the act was invalid. The argument was made in that case that the statute was not intended to affect the validity of the contract, but only the remedy for the enforcement thereof, but the court refused to so construe the statute, and held that the statute struck at both the validity of the contract and the remedy for the enforcement thereof. The question came again before the St. Louis Court of Appeals in Steam Heating Company v. Gas Fixture Company, 60 Mo. App. 148, and that court, speaking through Biggs, J., again held that the statute affected both the contract and the remedy, and that the purpose of the statute was to prevent such foreign corporations from enjoying equal advantages of trade with domestic corporations without bearing any of the public burdens imposed on the latter. In that case the goods were ordered by mail from St. Louis, and shipped by the plaintiff from its place of business in New York, and it was held that the statute did not apply because the plaintiff had not become “permanently located in this State for the purpose of prosecuting its business.”

The question came before the Kansas City Court of Appeals in Blevins v. Fairley, 71 Mo. App. 259, and that court, speaking through Ellison, J., followed the decisions of the St. Louis Court of Appeals above referred to, and further held that a subsequent compliance by such corporations with the statute did not relate back and validate a transaction which was invalid when it took place. The goods in that case were ordered from a traveling salesman, and the corporation had not established itself here as a “resident foreign corporation, ’ ’ and therefore the statute was held not to apply.

The question came before this court in Carson-Rand Co. v. Stern, 129 Mo. 381. That was an action by attachment upon notes executed hy the defendant to the plaintiff for goods sold and delivered. The opinion in the case does not show whether the contract was entered into in this State or in a foreign State. Presumably, from what is stated in the opinion, the contract was made in another State; and as no objection was made to the validity of the contract under our statute, the contract was a valid contract according to the laws of the State in which it was made. No point was made, and, therefore, no adjudication was had, as to the validity of the contract. The only point urged and decided in that case was whether or not a foreign corporation could “maintain” an action in this State without having complied with the laws of this State until after the action was instituted, but did SO' comply before the motion to dismiss the suit was filed. The question. considered and adjudicated in that case was the effect and meaning of the provision of section 1026, which, in addition to other penalties, provided that no such foreign corporation “can maintain any suit or action, either legal or equitable, in any of the courts of this State, upon any demand, whether arising out of contract or tort.” It was held that the word “maintain” meant, literally, “to hold by the hand,” and in its ordinary use, “to uphold, to sustain, to keep up,” while in pleading the law dictionaries define it to mean, “to support what has already been brought into existence;” and under that construction it was held that the word “maintain” as used in the statute was broad enough to authorize a compliance with the statute after suit had been instituted. The question of whether or not the corporation had become permanently located in this State was not raised or passed upon.

It is to be observed, however, that it was said in that case that the paramount object of the statute' was “to place foreign and domestic corporations on a footing of equality in the field of commerce. ’ ’

The decision in that case has led to a diversity of ruling between the Kansas City and St. Louis Courts of Appéals. The Kansas City Court of Appeals, speaking through Ellison, J., in Ehrhardt v. Robertson, 78 Mo. App. 404, held that the Carson-Rand .case did not have the effect of overruling the prior adjudications of the Courts of Appeals in this State, which held that the act struck at both the validity of the contract and the right to maintain an action for the enforcement thereof, but that it simply construed the provision of section 1026 affecting the remedy and did not touch upon or decide the question of the validity of the contract under sections 1024 and 1026. The court further pointed out that ever since the decision of this court in Downing v. Ringer, 7 Mo. 586, the courts of this State had adhered to the doctrine laid down by all text-writers, that where an act is prohibited by statute it is void, although not declared in the statute to be void; that an unlawful act or a prohibited act is a void act, and that no rights could arise out of it. The court also pointed out that there was but one exception to that general rule of law to be found in the decisions of this court and that was in reference to revenue laws. [Ins. Co. v. Walsh, 18 Mo. 229.] The learned judge, who wrote the opinion in that case, cited the prior adjudications which held that a contract entered into by a foreign corporation that had not complied with our statutes was void; and cited cases from Pennsylvania, Alabama, Oregon, Tennessee, Illinois, and Wisconsin which so construed similar statutes of those States; and called attention to the fact that the courts of Massachusetts held to the contrary, because the statutes of that State provided expressly that such contracts should be valid and affected only the remedy. For the foregoing reasons, the Kansas City Court of Appeals held that the Carson-Rand case only decided that an after-compliance with the statute would authorize the foreign company to maintain a suit, hut that it did not decide that an after-compliance with the statute would relate back and make valid a contract which was prohibited by the statute.

On the other hand, the St. Louis Court of Appeals in the case of Chicago Mill & Lumber Co. v. Sims, 101 Mo. App. 569, speaking through Goode, J., construed the Carson-Rand case as overruling the prior decisions of the two Courts of Appeals; and, upon .the faith of that construction, and of cases decided in other jurisdictions, notably Washington, West Virginia, Indiana, Massachusetts, Colorado, South Dakota and by the Federal courts, and from a consideration of the purposes and spirit of the statute itself, held that an after-compliance with the statute rendered the contract valid, as well as authorized the foreign corporation to maintain an action for the enforcement thereof. But one of the judges of that court deemed the opinion in that case to be in conflict with the decision of the Kansas City Court of Appeals in Ehrhardt v. Robertson, 78 Mo. App. 404; and, accordingly, that case was certified- to this court and that case is now pending in this court.

It is proper at this stage to note that the statute under consideration came before this court for adjudication in Hogan v. St. Louis, 176 Mo. 149. That was a case wherein a resident taxpayer sought to enjoin the city from entering into a contract with a foreign corporation to light the city. The city had advertised for bids to do the work of lighting it. The foreign corporation had submitted a bid and a contract had been entered into but no business had been transacted in this State. The contention of the plaintiff was that before a foreign corjooration could submit a bid or enter into a contract in such a case it was required to comply with the statutes, and that if it had not so complied when it submitted its bid and entered into the contract they were void. This court, speaking through Valliant, J., drew a distinction between submitting a bid and entering into a contract, and transacting business in this State, saying: “Of course, a contract cannot be lawfully made to do an unlawful act, but a contract may be lawfully made to do an act which the contracting party can lawfully do only when he shall have complied with conditions or satisfied other demands, and-his unconditional' contract to do it -carries with it the obligation to comply with those conditions or satisfy those demands; he assumes the risk of being able to do so. Therefore, when the Kern company entered into this contract, although it could not lawfully -perform it without conforming to the conditions of the Missouri statutes, yet the contract carried by implication the obligation on the part of the company that -it would conform to those conditions, and a neglect to do so, resulting in a failure to perform, would have been a breach of contract.” It was further held that entering into a contract to transact business was, in the unlimited meaning of the term, “transacting business,” but that-such was not the meaning of the term ‘ transacting business,” used in the.statute. Accordingly, it was held-that the contract entered into by the city with the foreign corporation pursuant to the bid of that corporation, and under which no other business had been transacted by the foreign corporation, was not within the prohibition of the statute.

The consideration of the statute again came before the Kansas City Court of Appeals in Woolen Mills v. Edwards, 84 Mo. App. 448. There the plaintiff was a non-resident corporation and had sold goods to the defendant, the contract, so far as appears from the opinion, being made in the State in which the- plaintiff was authorized to do business and therefore was a lawful contract under the laws of that State. The point in that case was as to the validity of the contract,- and no point seems to have been made, and none was decided, upon the question of remedy. It was contended by the defendant that the decision in Ehrhardt v. Robertson, 78 Mo. App. 404, controlled the case, but the Kansas City Court of Appeals, speaking through Ellison, J., held that the Ehrhardt case was inapplicable to the case undergoing adjudication. And further held that the contract involved in that case was a valid contract under the laws of the State where the contract was made and was therefore valid under the laws of this State, and as no point was made as to the right to maintain the action, the judgment in favor of the plaintiff was affirmed.

The question came before this court, again, in Trower Bros. Co. v. Hamilton, 179 Mo. 205. In that case the contract was made and to be performed in Kansas. The money loaned was secured by a mortgage on cattle in this State. The suit was an action in replevin for the cattle, after condition broken. The plaintiff had never complied with the statute and the defense was that the contract was void. No question as to the right to maintain the action was raised by the pleadings. The contract was also charged to be usurious under the laws of Kansas. It was held that as the note and mortgage were “valid under the laws of the State where executed, there is no obstacle in the way of their enforcement under the laws of this State, unless it be because of plaintiff’s failure to comply with sections 1025 and 1026, Revised Statutes 1899, before bringing suit, as section 3710, Revised Statutes 1899, has no application to such mortgages. But if it has, its effect is to invalidate a mortgage given as security to a Kansas contract, and it is as to such contract invalid under the fourteenth amendment to the Federal Constitution. [Allgeyer v. Louisiana, 165 U. S. 578; Bedford v. Loan Association, 181 U. S. 227.] ’ ’ Thus it will be observed that the validity of the contract and not the right to maintain the action was the point decided in that case. But a foreign corporation that had never complied with the laws of this State was permitted to invoke the aid of the courts of this State to enforce a contract that was valid according to the laws of the State of its domicile. It will he noted, however, that the corporation had not “permanently located” in this State nor become a “resident foreign corporation.”

The foregoing is the state of prior adjudication in this State concerning the subject in hand. It will serve no useful purpose to analyze the decisions of sister States upon similar or somewhat similar statutes. Each of the Courts of Appeals has decided that the weight of authority in other States sustains their respective decisions. That there is a conflict of authority must be conceded; and it, therefore, remains for this court to construe the statutes in its own way. At the outset it will be observed that the decision of this court in Carson-Rand Co. v. Stern, 129 Mo. 381, did not decide the question here involved, nor did it in any manner discuss, much less decide, the effect of the statutes (secs. 1024 and 1025, R. S. 1899) upon the validity of contracts made and to be performed in this State by foreign corporations that had not, before entering upon the performance thereof, complied with the provisions of those statutes. Inferentially, such contracts were treated as void in Hogan v. St. Louis, 176 Mo. 149.

It is manifest from the language -of the statute itself that it was the intention of the Legislature to place foreign corporations doing business in this State and deriving profit from, business done in this State with citizens of this State, upon an equality with domestic' corporations authorized by the laws of this State, and likewise to require such foreign corporations to bear the same burdens that domestic corporations have to bear. To accomplish this purpose, the statute (sec. 1024) prohibits any foreign corporation organized for pecuniary profit “to transact business in this State, or to continue business therein if already established” until it shall have established, and shall maintain, a public office in this State where legal service may be had upon it, and where proper books shall be kept to enable such corporation to comply with the constitutional and statutory provisions governing such corporations, and makes such foreign corporations subject to all the liabilities, restrictions and duties which are or may be imposed upon corporations of like character organized under the laws of this State; and further provides that they shall have no other or greater powers than domestic corporations. And section 1025 further provides, that every such foreign corporation so organized, now or hereafter doing business within this State, shall file with the Secretary of State a copy of its articles or certificates of incorporation, with the sworn statement of its principal officer or agent in Missouri, showing the proportion of its capital stock which is represented by its property located and business transacted in this State, and requires such corporation to pay incorporation taxes and fees equal to those required of similar corporations formed within and under the laws of this State. In this way the lawmakers intended to make foreign corporations become locally incorporated in like manner and with like obligations and liabilities as are required of domestic corporations, and prohibits such foreign corporations from transacting business in this State until they have become so locally incorporated. Thus, the statute strikes at the validity of business transacted or contracts entered into in this State prior to the foreign corporation becoming locally incorporated. If the statute had stopped here, and made no other provision, or .provided no other penalty, there would be no room for cavil that it was the intention of the Legislature to make contracts invalid that were entered into in this State by foreign corporations before complying with the statute, and such contracts would thus be void, and effective means of preventing foreign corporations from entering into such contracts with citizens of this State would have been afforded. But the Legislature went- further and by section 1026 provided a penalty or a fine of $1,000 to he recovered by'the State’s officers from corporations that failed to comply with the act; and went further still and, in addition to the penalty, provided that no such corporation should be entitled to maintain any suit or action upon any demand, whether legal or equitable, where it had failed to comply with the statute.

Thus, it is clear that the statute strikes at not only the validity of the contract, hut also the right of the company to do business in the State or maintain an action for the enforcement of a contract concerning business transacted in this State. The Carson-Eand case only goes to the effect of holding that an after-compliance with the statutes will enable such foreign corporation to maintain the action, but it does not hold that such after-compliance will relieve such corporation from the penalty or fine prescribed, nor does it hold that the contract itself is a valid contract. The two- latter features were not passed upon or decided in that case. Some of the cases decided by the Courts of Appeals have drawn a distinction between such foreign corporations as have “permanently located” in this State or have become “resident foreign corporations,” without complying with the laws, and foreign corporations that have made contracts in the State of their domicile with residents of this State, and where the foreign corporation simply seeks the aid of the courts of this State to enforce such contracts.

As to the contracts made by foreign corporations in the States of their domicile with citizens of this State, the contracts being valid according to the laws of the State where made, the lex loci contractus governs and will he enforced in this State as a matter of comity, unless the contract is prohibited by the laws of this State. In other words, such cases present the feature of a valid contract which one of the contracting parties qualifies himself to enforce in the courts of this State; and, therefore, those cases relate to the remedy and not to the right or validity of the contract. Of course, in every case there must be not only a legal subject-matter but also a plaintiff competent to sue under the laws of this State. The Carson-Rand case falls within the principle here announced, and the case at bar falls within a similar principle as far as relates to the remedy, and under that principle there is in, this case a competent party plaintiff under the laws of this State. But there is also present in this case the other feature which was not present in the Carson-Rand case, to-wit, the question of the validity of the contract or subject-matter of the suit. In this case the plaintiff entered into a contract and proceeded with the performance thereof for nearly four months, and seeks to recover for profits it would have earned under that contract for over four years thereafter if it had not been prevented from carrying out the contract by. the act of the defendant. So far, therefore, as this case is concerned, the plaintiff has received the full benefits of its contract with a citizen of this State for four months without complying with any of the laws of this State relating to foreign corporations, and it now asks the aid of the court to enforce a contract that is executory and cannot be completed for four years after the suit was instituted. It has well been said that the purpose of the statute is to place foreign corporations upon an equality with domestic corporations and impose the same burdens upon them that domestic corporations have to bear, and to prevent foreign corporations from deriving benefits of business done with citizens of this State while bearing none of the burdens imposed upon like corporations organized under the laws of this State. To entitle domestic corporations to do business in this State they must first become incorporated and pay to the State the incorporating taxes and fees required by the statute. To place foreign corporations upon an equality with domestic corporations, they should be, and are, required, also, to pay a similar amount to the State. Such foreign corporations in order to be placed upon such an equality must also put themselves in the same position that domestic corporations are required to be placed in with respect to the constitutional and statutory requirements of this State, among which is that there shall be some person in this State upon whom service can be had in the event they do not fulfill their contracts with residents of this State, if such residents desire to recover for a breach thereof.

It is too clear to admit of cavil that if foreign corporations are.allowed to come into this State and do business with its people, derive all the benefits of such business, and fail to comply with the requirements of the statutes unless they need the aid of the courts to enforce the contracts against the citizens of the State, the door will be left wide open for them to do such business and never bear any of the burdens that domestic corporations have to bear, unless they need the aid of the courts, and that a construction of the statute which would enable foreign corporations to so do would not only fail to place such foreign corporations upon an equality with domestic corporations and enable them to avoid payment of the incorporating taxes and fees and thus defraud the State, but if the corporation broke the contract and the citizen sought to enforce it, the foreign corporation would not then comply with the laws of the State and the citizen would have to go to the domicile of the foreign corporation in order to sue it. It was to prevent the happening of such a contingency that the statute in question was, principally, enacted.

The statute prohibits foreign corporations from doing business in this State without first having complied with the law. Such a prohibition is as effective to make a contract entered into by such foreign corporation in this State void as if the statute had in terms declared such contracts to be void. The general rule of law is that where an act is prohibited or declared unlawful, it is not negessary for the law to declare the act or contract void. An -unlawful act is itself void. This has beén the rule of law in this State ever since the decision of this court in Downing v. Ringer, 7 Mo. 586. That was an action upon a note given for the purchase of a town lot. The plat laws of this State provided, that if any person sell or offer for sale any lot before the map or plat of the town, village or addition be made out, acknowledged and recorded,, such person shall forfeit a sum not exceeding three hundred dollars for every lot he shall sell or offer to sell. The question of the validity of the note was the point at issue in that case, and this court, speaking through Napton, J., said: “It was formerly doubted in England, whether an agreement which merely inflicted a penalty for doing the act; but in Bartlett v. Vinor (Carth. 252; Chitty on Con., 230), Lord Holt said, ‘ Every contract made for or about any matter or thing which is prohibited, and made unlawful by any statute, is a void contract, though the statute itself does not mention that it shall be so, but only inflict a penalty on the defaulter; because, a penalty implies a prohibition, though there are no prohibiting words in the statute.’ This is the established modern doctrine, and the distinction between mala prohibita and mala in se, is discarded. [Chitty on Con., 232.] The cases in this country are uniform in declaring the principle, that if a note or other contract be made in consideration of an act forbidden by law, it is absolutely void, and the illegality of the contract will constitute a good defense at law, as well as equity. [2 Kent’s Com., 466.] The penalty inflicted by the act concerning plats of towns and villages, implies a prohibition against the sale of lots before the requirements of the act are complied with, and the courts will not enforce a contract entered into against the spirit and policy of the statute. ’ ’ Accordingly, the note was declared absolutely void.

This case was expressly cited and followed in Mason v. Pitt, 21 Mo. l. c. 393; State ex rel. v. Co. Court, 72 Mo. l. c. 331; Rollins v. McIntire, 87 Mo. l. c. 505; Live Stock Association v. Cattle Co., 138 Mo. l. c. 406 (in which it was further said, ‘ ‘ The cases in this country are uniform in holding that a contract forbidden by statute is void, and the general rule is, that no action or suit can be maintained either at law or equity upon such a contract, even where the statute does not expressly declare them void”); and in St. Louis Pair Association v. Carmody, 151 Mo. l. c. 573 (in which it was said, ‘ ‘It makes no difference how fair the contract may be on its face, or how innocent in its own isolated terms, if it is designed to encourge an object forbidden by law, the courts will have nothing to do with it”).

These considerations necessarily lead to the conclusion that foreign corporations doing business in .this State must comply with the laws of this State, and that contracts entered into by such corporations, in this State, before complying with the laws of this State, are void and cannot be enforced in the courts of this State. Contracts entered into by foreign corporations in the States of their domicile, with citizens of this State, where valid according to the law of the State of their domicile and not prohibited by the laws of this State, are valid contracts and will be enforced in this State as a matter of comity, and such corporations are not required to comply with the statutes cited in order to maintain such actions. In other words, the statute was not intended to affect such cases, nor to change the rules of comity that have always been observed by the courts of the several States. The statute is leveled at and confined to foreign corporations that transact business in this State, and the asking the aid of the courts to enforce contracts that relate to legitimate business done in other States and that is not prohibited by the laws of this State, does not constitute doing or transacting business in this State within the meaning of the statute. This conclusion is accentuated by the language of the statute itself, for section 1026, Revised Statutes 1899, exempts “ ‘drummers’ or traveling salesmen soliciting business in this State for foreign corporations which are entirely non-resident.” It would be a solecism to construe the statute so as to allow such contracts to be made in this State by “drummers” for corporations that had never complied with the statute, but to require them to comply with the statute if they had to ask the aid of the courts to enforce them.

The case of Trower Bros. Co. v. Hamilton, supra, comes within the rule of comity spoken of. And the case of Carson-Rand Co. v. Stern, supra, so far as the facts in judgment are shown by the opinion, also falls within the same rule. But the case at bar is very different, for here the foreign corporation was unquestionably transacting, business in this State within the meaning of the statute. This is the only construction of the statute which will give full force to all the provisions of the statute, and it is likewise the only construction of the statute which will place such foreign corporations that do business in this State or make contracts in this State on an equality with domestic corporations, and which will enable the people of this State to secure the aid of the courts of this State when such foreign corporations are guilty of a breach of such contracts. These principles applied to the case at bar necessarily lead to the conclusion that the judgment of the circuit court is right, and it is, therefore, affirmed.

All concur, except Brace, P. J., absent.