author: BOND, J.

text:
    E. S. HAMILTON v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    May 31, 1913.
    1. APPELLATE JURISDICTION: Constitutional Question: Decided After Appeal. Where the constitutional question raised by appellant was decided after the appeal was taken, the Supreme Court will retain jurisdiction, though it would not have jurisdiction "had not such question been lodged in the case, and though it would not take jurisdiction if the question had been decided before the appeal was taken.
    2. NEGLIGENCE: Ejecting Intoxicated Passenger: At Safe Place. The putting off of a train of a passenger, intoxicated but not to the point of stupefaction, not because he refused to pay fare or for any misbehavior but because he had been carried beyond his destination, at a place where he was not exposed to any dangers which would not beset one in his condition elsewhere, and who, realizing his condition, called a lad to help him cross a long railroad bridge and then walked a mile along the track towards another station, and was there struck by a train, was not such negligence as entitled his widow to recover for his death.
    3. --: Humanitarian Rule: Necessary Elements. Unless there is proof that the defendant was guilty of negligence and that such negligence was the proximate cause of the injury, there can be no recovery under the humanitarian doctrine. Where the body of deceased was found on a fenced railroad track, and, while the track was occasionally used by pedestrians when the streams crossing the public road were swollen, there is no evidence that defendant licensed this use by pedestrians of its track and had no reason to expect persons to be lawfully thereon, and deceased, in a half-intoxicated condition, after having at about nine o’clock at night been put off of a train, attempted to walk to the next station, and something after eleven o’clock was struck by a train, there being no evidence that he was seen at any time by any of the train men, his widow cannot recover. The law does not make it the duty of a railroad to maintain a lookout for trespassers on its track. No duty to avoid injuring them arises until they are actually seen.

      i. -: —:-: -: Linking Negligence With Injury: Inference Upon Inference. Nor can there be any recovery if there is no evidence linking the negligence of defendant with the death of plaintiff’s husband. Two trains passed the point of accident about eleven o’clock at night and deceased’s body was found next morning in such a condition as to justify the inference that he had been struck by a train, and there being no evidence from which it can be inferred that he was seen on the track in a position of peril and at a distance sufficient to permit the stopping of the train, there can be no recovery. A second inference cannot be rested upon a first.
    Appeal from Newton Circuit Court. — Eon. F. C. Jolmston, Judge.
    Reversed.

      S. W. Moore, Gyms Crane and O. L. Cravens for appellant.
    The demurrer to the evidence tendered by defendant should have been sustained. (1) Deceased’s death was not the proximate cause of his alleged negligent expulsion, but it happened while he was a trespasser and there is no proof whatever of any of the circumstances attending the accident. Hughes v. Railroad, 67 S. W. (Ky.) 984; Gwyn v. Railroad, 155 Fed. 88; Brown v. Railroad, 103' Ky. 211; Railroad v. Logan, 88 Ky. 232; Gaullder v. Railroad, 130 Mich. 166; Roseman v. Railroad, 112 S. C. 709, 19 L. R. A. 327; Railroad v. Bryant, 72 S. W. (Tex.) 885; Dbbney v. Railroad, 140 111. App. 269; Railroad v. Yalleley, 32 Ohio St. 345; •Henry v. Railroad, 76 Mo. 288; Logan v. Railroad, 96 Mo. App. 461; Warner v. Railroad, 178 Mo. 125; Veatch v. Railroad, 145 Mo. App. 232; Davis v. Railroad, 155 Mo. App. 317; Pennel v. Railroad, 153 Mo. App. 566; Koegel v. Railroad, 181 Mo. 379; Cahill v. Railroad, 205 Mo. 393; Ginnichio v. Railroad, 155 Mo. App. 163; Ries v. Transit Co., 179 Mo. 1; Moore v. Railroad, 176 Mo. 528; Engleldng v. Railroad, 187 Mo. 158; ITufft v. Railroad, 222 Mo. 301. (2) Deceased’s contributory negligence bars plaintiff. Payne v. Railroad, 155 Fed. 76; Yarnall v. Railroad, 75 Mo. 575; Ayers v. Railroad, 190 Mo. 228; Trigg v. Transit Co., 215 Mo. 521; Murphy v. Railroad, 228 Mo. 83; Frye v. Railroad, 200 Mo. 377; Morgan v. Railroad, 196 Fed. 449; McCauley v. Transit Co., 179 Mo. 583. (3) The humanitarian rule does not apply because deceased was a trespasser. Frye v. Railroad, 200 Mo. 377; Tarnall v. Railroad, 75 Mo. 575; White on Per. Inj. on Railroads, sec. 873; Ervin v. Railroad, 158 Mo. App. 1; Koegel v. Railroad, 181 Mo. 396; ITyde v. Railroad, 110 Mo. 272; Pulley v. Railroad, 94 Iowa, 567; Engleking v. Railroad, 187 Mo. 158; Beiser v. Railroad, 92 S. W. (Ky.) 928; Hamlin v. Railroad, 37 Wash. 448. (4) The humanitarian rule does not obtain in .this case because there is no proof of unity of time, place and public use of the track. Chamberlin v. Railroad, 133 Mo. 587; Ahnefeld v. Railroad, 212 Mo. 300; Green v. Railroad, 211 Mo. 44; Ayers v. Railroad, 190 Mo. 228; Frye v. Railroad, 200 Mo. 401; Trigg v. Transit Co., 215 Mo. 521; Epstein v. Railroad, 197 Mo. 720.

      B. M. Sheppard, Hugh Babbs and J. A. Sturgis for respondent.
    (1) The petition alleged, the testimony proved, and the jury found that deceased, at the time he was taken from appellant’s train, was so intoxicated as to be unable to take care of himself, and was left by appellant’s agents in such a place and under such circum-stances as to expose him to unnecessary peril, and that by reason of this, he was run over by one of appellant’s trains and killed. Under these circumstances, the proximate cause of Hamilton’s death was appellant’s negligence, and the question as to whether or not deceased was a trespasser on appellant’s track does not enter into the case. Phillips v. Railroad, 211 Mo. 419; Sullivan v. Railroad, 81 Ky. 624, 50 Am. Rep. 186; Haug v. Railroad, 42 L. R. A. 667;-Brown v. Railroad, 51 Iowa, 235; Weber v. Railroad, 33 Kan. 543; Connolly v. Railroad, 3 L. R. A. 133; Railroad v. Johnson, 108 Ala. 62, 31L. R. A. 372; Turner v. Railroad, 60 Ala. 621; Gill v. Eailroad, 37 Hun, 107; Atkinson v. Eailroad, 90 Mo. App. 489; Ellis v. Eailroad, 97 Ky. 330; Harless v. Eailroad, 123 Mo. App. 22; 6 Cyc. 563; Wood on'Eailway Law, secs. 363-364; 4 Elliott on Eailroads, sec. 1637; 3 Thompson on Negligence, sec. 2740. (2) The evidence in the case shows that deceased was not a trespasser, but a licensee, and that he was injured at a place where the law made it the duty of those in charge of appellant’s trains to keep a lookout for persons on the track. The court, therefore, properly submitted the case to the jury under instruction number two given for plaintiff. Murphy v. Eailroad, 228 Mo. 82; Bunyan v. Eailroad, 127 Mo. 12; Woods v. Eailroad, 188 Mo. 12; Pears v. Eailroad, 180 Mo. 208; Eiggs v. Eailroad, 216 Mo. 389; Morgan v. Eailroad, 159 Mo. 250; Dutcher v. Eailroad, 241 Mo. 137; Clark v. Eailroad, 242 Mo. 596; Kelley v. Eailroad, 101 Mo. 74.
    STATEMENT BY THE COUET.
    The plaintiff is the widow of W. J. Hamilton and sues for injuries causing his death in two counts: (1st), That defendant negligently ejected him from its train while a passenger thereon and in such a state of intoxication as to be unable to care for his own safety at a place which was known by defendant to be dangerous; (2nd), That her husband was killed at a point on the track of defendant midway between the station of Lanagan and the flag station of Madge or Elk Springs, where its track was commonly used as a pathway and when defendant was under the duty to look out for persons so using it, and where he was killed by the negligent failure to stop the train after he could have been seen on its track at a sufficient distance to have stopped the train if that duty -had been observed.
    The answer was a genera! denial and plea of contributory negligence and of the unconstitutionality of the statute sued upon.

      The evidence for the plaintiff was that her husband, while drunk, became a passenger on defendant’s road at Neosho, about seven o’clock p. m., June 15, 1908 ; that his ticket read to Lanagan, a town south of Neosho; that after he had passed his point of destination, he was assisted from the train at a flag station, two and a half miles farther south, known as Madge or Elk Springs. It was about nine o ’clock when the train reached this point. There was a post office there, but no ticket office; five or six families lived there, but' there was no hotel or boarding house. Plaintiff’s husband, although drunk at the time, applied to one of the residents, Mr. Kinney, for the services of his son to conduct him across a railroad bridge, eight hundred feet long and situated about two hundred and fifty feet north of the town. This lad returned after he had performed the service, and the plaintiff’s husband was not thereafter seen until his body was discovered next morning on the east side of defendant’s track about one mile from the flag station, or half way between it and Lanagan. The body gave evidence that the deceased had been struck and killed by a passing train. Only two trains passed that point on that night — one a freight at eleven p. m.; the other a passenger at eleven: forty-five p. m. There was no evidence which of the trains caused the death of plaintiff’s husband. When discovered on the morning of June 16th, his body was lying at a spot two hundred yards north of a ten-degree curve in defendant’s road and which would have been visible to a person on the lookout of a northbound train at a greater distance than two hundred yards. There was a country road between Elk Springs and Lanagan which crossed several streams, some of which were not fordable at the time of the accident. Many persons used the railroad track and bridge in going from Elk Spring's to Lanagan. The defendant’s evidence negatived any knowledge of the accident and tended to show that its track was fenced and trespassers were warned not to nse it.
    At the conclusion of the trial, the jury returned a verdict for $5000. Defendant moved for judgment, notwithstanding’ the verdict, on the ground that the statute under which this action is brought, after its amendment in 1905, was violative of the Federal and State Constitutions, in certain respects pointed out in its answer in this cause, for which reason defendant prosecuted its appeal to this court, where it complains of the refusal of the trial court to sustain its demurrers to the evidence and the giving and refusing instructions and other matters, which, if necessary, will be adverted to in the opinion.
   OPINION.

BOND, J.

(After stating the facts as above).

I. The constitutional question raised in the answer touching the validity of the Damage Act as now amended has been decided since this appeal was taken contrary to the position of appellant. [Burge v. Railroad, 244 Mo. 76.] Hence, we retain jurisdiction of the case, which we would'not do had the above decision been rendered at the time the case was appealed. [Taylor v. Railroad, 207 Mo. l. c. 499.]

II. The questions decisive of this appeal are, whether under the testimony of respondent and the legitimate inference arising therefrom, there could be iany recovery on either of the grounds alleged in her petition. The deceased was not ejected from the train for refusing to pay fare or any misbehavior whilst a passenger. He was simply put off at a flag station beyond the point of his intended destination because he had failed to leave when it arrived -there. He was not left at a place where he could not have secured accommodation, as far as the record shows, nor where he was exposed to any dangers which would not beset a man in his condition elsewhere. Indeed, had he been left in a traffic-crowded thoroughfare of a city, he might have been exposed to greater peril than at the quiet flag station where he was landed. He met with no mishap incident to the place where he disembarked. He realized his condition and hired a young person to conduct him across a bridge of the railroad whose track he desired to follow until he reached Lanagan. It is indisputable that he had traveled this track for ,a mile, or more before he was injured. Under these facts, no cause of action arose in favor of his widow for his being left at the flag station, for the reason that it was not a place necessarily dangerous to an intoxicated person, nor was he injured by any peril to which he was exposed-there. The case clearly does not fall within the rule stated in the authorities quoted by learned counsel for respondent, to the effect that “when the carrier discovers that one helpless from intoxication is upon its train without right, it must, in selecting a safe place to put him off, have regard to his actual condition, physical and mental, without any reference to his responsibility for such condition.” [Haug v. Railroad. 42 L. R. A. 669; 4 Elliott on Railroads (2 Ed.), sec. 1637.] The case of Phillips v. Railroad, 211 Mo. 419, cited for respondent, is not analogous. There the railway had agreed to treat a demented passenger.for his ailment whom it brought from Springfield to St. Louis for that purpose, and with full knowledge of his condition turned him loose upon the streets of that city, unattended and with no notice to his family. He laid down, undressed, on a street car line, and was killed by one of its trains. It was correctly ruled, that the case thus made should have gone to the jury, under the doctrine that the carrier was “liable for such injuries as would reasonably be expected to follow from such negligence and not from mere remote contingencies.” [Ibid., p. 442.] In the case at bar, the plaintiff’s husband was not demented nor drunk to stupefaction. He was able to hire a guide and walk over the railroad bridge and a a mile of its track. He was aware of his condition. He made no effort to stay at the houses of .any of the .residents of the flag station, but at nine o ’clock at night began a journey of two miles to the town of Lanagan,' which he had passed on the train; and, after accomplishing half the distance, in some manner, wholly undisclosed by the evidence, he was killed by a passing train. It is evident he was not injured by any cause existing or located where he got off the train.

Our conclusion is that on the first count of the petition no case was made for the jury.

III. Neither can we perceive any room for the application of the last clear-chance doctrine .relied upon in the second count of the petition. That doctrine is predicable upon the opportunity to avoid injury to another who negligently or otherwise is placed in a position of peril. [Bennett v. Railroad, 242 Mo. 125; Klockenbrink v. Railroad, 81 Mo. App. 351, and cases cited; same case, 172 Mo. l. c. 687.] Hnless there is proof (1) that the party sought to be charged was guilty of negligence, and (2) that such negligence was the proximate cause of the injury, no recovery can be had. In the present case the spot where the body of the deceased was found was on the fenced track of the defendant’s railroad. That the whole track between Elk Springs and Lanagan was occasionally used by pedestrians for their convenience or when the country road was difficult on account of freshets, is shown by the proof; but there is no evidence that the defendant licensed this use of its tracks or had any reason to expect any persons, other than trespassers, to be on the track at the spot where the deceased was lulled. The law does not make it the duty of a railroad to maintain a lookout fox trespassers on its tracks. If such persons are actually seen, the carrier must exercise due care to avoid injuring them; but until they are observed, no duty arises. This record is wholly barren of any evidence tending to show that the deceased was actually visualized by any servant of the defendant prior to the accident, hence there is no proof of negligence on the part of defendant in connection with the injury.

Moreover, the plaintiff is barred from any Recovery in this case for another reason, which is that there is no evidence whatever linking the negligence of defendant (had there been any) with the death of plaintiff’s husband. His body was found on the morning after two trains had traversed the track he was last seen to be walking on. Hence, it is legitimately inferable that he was struck by the train, but it is not legitimately inferable from any fact proven that he was seen or seeable on the track in a position of peril and at a distance sufficient to permit the stoppage of the train. Such an inference is wholly unsupported by any fact proven in the record. The only way it could be deduced would be by basing it on the inference of his being killed by the train; or, in other words, resting a second inference upon a first inference. This is not permissible. [Glick v. Railroad, 57 Mo. App. l. c. 104, and cases cited.]

In order to bring the case within the theory of the last clear-chance doctrine, it is necessary that there should be evidence, positive or inferential, that the deceased was upon the track, lying, standing or sitting for a time prior to the injury sufficiently long for actual or constructive sight by the persons in charge of the train and when it was at a distance sufficiently great to permit it to be stopped before striking him. There is no evidence whatever in the record from which these facts can be legitimately inferred. And as they cannot rest upon a prior inference that he was killed by the train arising upon proof of the position of his-body and the blood stains on the track, there is nothing in the case by which they can be established.

The rule is elementary that inferences cannot be piled upon each other but every inference must be a rational deduction from a fact or facts in proof. And while it is true that there may be a concatenation of any number of inferences in a given case, each of these' must rest on its own facts and no one can be based upon another or a preceding inference.

It follows that even if there had been a duty imposed on defendant to be on the lookout for the presence of the deceased on its enclosed trpok, and had it failed to observe that duty, still there is nothing in the proof adduced on the trial which shows that the injury to plaintiff’s husband was proximately caused by such negligence, for there is no legitimate inference that the deceased was on the track for any definite period of time before he was struck. We conclude that no recovery should! have been allowed on the second count of the petition, and that the trial court erred in overruling the demurrer of the defendant to the evidence. The judgment is reversed.

All concur.


source: Caselaw Access Project

author: BROWN, C. WOODSON, P. J.

license: Public Domain

text:
    JOHN W. WULFING, Appellant, v. ARMSTRONG CORK COMPANY.
    Division One,
    May 31, 1913.
    1. FOREIGN CORPORATION: Right to Do Business: Lease of Offices Before Compliance With Law. A lease to a foreign corporation of the real estate upon which it has its office is not void because made before the corporation had, by compliance with Secs. 1024-1026, E. S. 1899, acquired the right to do business in this State.

      2. -: -: -: Ratification. And even though the foreign corporation may have been occupying the premises and transacting its business in this State without compliance with the law, before and at the time the lease was made, yet having, after its compliance with the law and the issue of its certificate, continued to hold under the same lease, the lessor, by receiving the benefits accruing under it upon the theory of its validity, for five years, will be held, by his ratification, to have supplied the only element necessary to its completion, at a time when respondent was competent to take under it. [WOODSON, P. J., dissenting as to the ability to ratify such a contract.]
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.
    Affirmed.

      W. Scott Hancock and W. Hall Trigg for appellant.
    Contracts made in this State by an unlicensed foreign corporation, doing business here, are illegal and void. Amusement Co. v. Amusement .Co., 192 Mo. 404; Mill & Lumber Co. v. Sims, 197 Mo. 507; Roeder v. Robertson, 202 Mo. 522; Machinery Co. v. Ramlose, 210 Mo.- 631, 231 Mo. 508; Zinc & Lead Co. v. Mining Co., 221 Mo. 7. A fortiori, such contracts are nullities where they are to be performed in this State, and have for their subject-matter realty situate here. Zinc & Lead Co. v. Mining Co., 221 Mo. 7. It is not the inhibition of the statute against such corporations maintaining suits in the courts of this State, but the unlawfulness of transactiug their corporate business here, which strikes at the essential validity of their contracts, and affects them with nullity. Therefore, the question is not one of remedy, but of right. The infirmity being one going deeper than the remedy, and fixing itself upon the contract itself, the position of the parties, thereto before the court, either as plaintiff or defendant, or whether the statute be used as a defense, or as a ground for affirmative relief, are alike unimportant. Baptist Church v. Baptist Church, 73 N. Y. 82; Parkersburg v. Brown, 106 U. S. 487; King v. Wilson, 95 N. W. (Neb.) 494; Toby v. Schultz, '51 111. App. 487; White v. Bank, 22 Pick. (Mass.) 181; Pinckston v. Brown, 3 Jones Eq. (N. 0.) 494; Gorringe v. Reed, 23 Utah, 121. Subsequent procurement of license, authorizing such a corporation to transact business in this State, has no ex post facto operation. It speaks for the future, not the past. Amusement Co. v. Amusement Co., 192 Mo. 404; Zinc & Lead Co. v. Mining Co., 221 Mo. 7; Mill & Lumber Co. v. Sims, 197 Mo. 507; Blevins v. Fairley, 71 Mo. App. 259; B. & L. Assn. v. .Denson, 189 U. S. 408. Leases made by unlicensed foreign corporations, doing business in this State, pass no estate or. interest, and confer no rights in the subject-matter thereof. Zinc & Lead Co. v. Mining Co., 221 Mo. 7; Machinery Co. v. Ramlose, 210 Mo. 631, 231 Mo. 508; Boeder v. Robertson, 202 Mo. 522. A lease, in order to create a tenancy other than from month to month, must be executed both • by the lessor and the lessee. R. S. 1909, sec. 7883; Yalle v. Kramer, 4 Mo. App. 570; Combs v. Transfer Co., 58 Mo. App. 112. No such unlicensed foreign corporation, doing business in this State, has any local existence.. It is not recognized here as an entity. Accordingly in the lease in question there was. no lessee. Bowden v. Daniell, 151 Mó. App. 15; Ehrhardt v. Robertson, 78 Mo. App. 404. Furthermore, the-lease itself being a. nullity, the defendant’s possession is that of a trespasser. Berni v. Boyer, 90 Minn. 469.

      Joseph H. Zumbalen and Henry T. Ferriss for respondent.
    A subsequent purchaser of real estate cannot invoke the aid of the statute prohibiting unlicensed foreign corporations from doing business in this State, to defeat an outstanding lease on the premises, made by his grantor to such an unlicensed corporation. In ejectment by such purchaser against the corporation, it can assert its rights under the lease. Blodgétt v. Zinc Co., 58 C. C. A. 79; Tel Co. v. Superior Court, 153 Cal. 533; Lumber Co. v. Lesh & M. L. Co., 144 Wis. 362. In ejectment against a foreign corporation it may assert a lease, under which it is holding, made to it before it obtained a license to do business in this State. Such a lease, being an executed conveyance or grant, is not assailable on the ground that the lessee was ar unlicensed foreign corporation when it was made. Die fenbach v. Vaughan, 116 Ala, 150; Kindred v. Mortgagi Sec. Co.,' 116 Ala. 192; Light Co. v. Rust, 117 Ala. 680 Rachels v. Cooperage Works, 128 S. W. (Ark.) 348; Heiskell v. Lodge, 87 Tenn. 668; 19 Cyc. 1303; Manufacturing Co. v. .Construction Ox, 124 Mo. App. 349'. The lease having been fully executed by the lessee’s entry into possession, vested an estate in the land in the lessee, for the term of the lease, although it had not complied with the statute concerning foreign corporations doing business in the State, which estate could only be defeated by the State in a direct proceeding. 19 Oye.308, 1240 ; Fritts v. Palmer, 132 U. S. 282; Seymour v. Gold Mines, 153 U. S. 5-23; Chattanooga Co. v. Evans, 14 C. C. A. .116; Reed v. Todd 127 N. W. (S. D.) 527; War Eagle Co. v. Dickie, 14 Idaho, 534; Miller v. Williams, 27 Colo. 34; Carlow v. Aultmann, 28 Neb. 672; Loan & Trust Co. v. Gordon, 113 Iowa, 481; Rogers v. . Nashville Co., 33 C. C. A. 534; Rothckild v. Memphis Co., 51 C. C. A. 310. The foreign corporation statute affects merely the capacity of the corporation to contract; and after the transfer of an interest in land to the corporation has reached completion, the transaction cannot be questioned collaterally by a private suitor. The same rule applies as in the case of a purchase of land by an alien. Ins. Co. v. Smith, 117 Mo. 289; Property Co. v. Nashville, 114 Tenn.. 213; Pembroke v. Huston, 180’ Mo. 6-27. The acceptance of rent by the lessor under the lease, for more than five years after the- cor- • poration procured a license to do business in this State, was 'a ratification thereof which estops him and his grantee from now questioning its validity. Applebaum v. Galewski, 34 N. Y. Misc. 281; Earl v. Steffens, 1 N. J. L. 53; Hassard v. Tomkins, 108 Wis. 186. The statute is directed against carrying on of its charter business by a foreign corporation, until it has complied with its terms. The acquisition of real property or an interest therein, is not within the prohibition, unless that be the charter business of the corporation. 19 Oyc. 1303; Property Co. v. Nashville, 114 Tenn. 213. Appellant cannot repudiate the lease, even if it be void, without first returning or offering to return the rents received under it. Roeder v. Robertson, 202 Mo. 522; Tarr v. Western L.'& S. Co., 15 Idaho-, 741; Iianchey v. B. & L. Assn., 140 Ala. 245.
   BROWN, C.

This is ejectment for the property and building in the city of St. Louis known as numbers ten and eleven North Second street, which was, up to the sixth day of May, 1907, owned by Lavinia S. Shall-cross and others. At the date last named it was purchased by the plaintiff at a partition sale made by one Charles F. A. Mueller, a special commissioner appointed by the St. Louis Circuit Court for that purpose in a suit pending between the owners.

The defendant is a Pennsylvania corporation and has been engaged in business in the city of St. Louis since 1895, and from November, 1896, up to the time of the trial it maintained an office and place of business in the premises in controversy, where it carried on the business of buying and selling corks and other brewery supplies; and it had .a warehouse in St. Louis from which to make its deliveries. During all that time Mr. Sidney L. Gilbert has been its business manager in that city. Its principal office was in Pittsburg, Pennsylvania. Up to January 13, 1902, it had not complied with the laws of the State of Missouri entitling it to a license to do business in the State, but on that date having complied with those laws its license issued and was delivered hy the Secretary of State.

By a lease dated October 10, 1901, the owners of the premises, parties to the partition suit, by Wyatt Shallcross, their trustee, leased the premises to the defendant for use as a store and cork factory for a term of ten years from and after-the first day of January, 1902, “at an annual rental of fifteen hundred dollars payable monthly in installments of one hundred and twenty-five dollars each.” At the trial, which occurred at the February term, 1908, Mr. Mueller, the commissioner, testified that prior to the sale of the property by him the plaintiff asked him to ascertain for him the nature of the tenancies of-the parties in possession of the property, which included other buildings than those in controversy, and on October 8, 1907, he went to defendant’s office and in a conversation with Mr. Gilbert, its manager, was told by the latter that defendant had no lease on the premises in question; that the lease it had had expired, and that he supposed they would have to vacate; that thereafter, and before the sale, he saw the plaintiff and communicated to him the statements of Mr. Gilbert. Mr. Gilbert testified that prior to the sale Mr. Mueller came to his office asking permission to place a sign in front of the building, and stating that the property was to be sold; that the witness thereupon, in Mr. Mueller’s presence, turned to his bookkeeper saying: “Mr. Sharing, they tell me they are going to sell the building, and I am under the impression they have got us short here;” that the two talked the matter over in the hearing of Mr. Mueller and were uncertain as to whether or not their lease on the property had expired, or was still in force; that during the conversation it was stated that the lease was in Pittsburg, and the witness said that, as he was going to Pittsburg within a week or two to attend a director’s meeting he would then find out how matters stood; that Mueller asked nothing concerning the terms of defendant’s tenancy or tlie duration of its lease; that he said nothing to Mueller to the effect that the tenancy of the defendant was from month to month.

Mr. Shallcross testified that before the sale Mr. Mueller had asked him to bring the leases covering the several properties in the sale, so that they might be referred to in case any questions were asked about them; that he then knew that defendant’s lease had not expired,.and, while unable to state positively, he thinks he so informed Mr. Mueller. He had at the sale memoranda showing the terms of all the leases.

The plaintiff testified that he had been in business on Second street for twenty-five years and that he had known for a number of years that the defendant was in possession of the property.

The court excluded the statement of plaintiff that on the 24th or 25th of October, 1907, Mr. Mueller had reported to him that defendant’s agent had-told him there were no leases on the property in controversy. The appellant’s abstract of the record shows that this action was excepted to, but the defendant filed a supplemental abstract showing that this was not the case and nothing further was done.

The defendant’s lease was not recorded until after the plaintiff purchased and paid for the land.

The appellant makes no complaint either in his assignment of errors or brief that the question of notice to plaintiff of the defendant’s lease was not properly submitted to the jury upon unexceptionable instructions. While he assigns error on the action of the court in excluding testimony, it has not, as wé have seen, been properly saved in the record, and even were it material error, which is doubtful, it is not before us for consideration. The only question presented is whether or not the lease is void and inoperative because the defendant had not, on or before the first day of January, 1902, the date upon which, by its terms, it was to take effect, by compliance with the statutes in that respect acquired the right to do business in this State. This point is urged with great force and learning by the appellant’s counsel. These statutes have frequently been before the court for consideration and interpretation, from the point of view involved in each particular case, but as new questions are presented it seems necessary to examine them in the new light so suggested. In doing so we shall refer to the Revised Statutes of 1899, which were in force at the time.

Section 1024 provides 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 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 consititutional and statutory provisions governing such corporation.” "We note that this provision requires certain things to be done that necessarily involve the making of contracts before it shall be permitted to transact business in the State or to continue its business if already established. As a condition precedent to the transaction of any business it must make all necessary contracts for the purchase or lease of real estate, and the construction or renting and fitting up of its office for the keeping of all bonks and the performance of all work necessary to enable it to comply with the constitutional and statutory provisions which will govern it in its new domicile. That this section contemplates the right of the corporation to purchase as well as to lease lands for that purpose is shown by the provision which forbids it to hold any real estate for more than six years ‘ ‘ except such as may be necessary and proper for carrying on its legitimate business. ” This demonstrates that it is not the making of a contract for performance within the State which is intended to he forbidden without regard to its nature or object, but that the inhibition is directed against the making of all contracts and the doing of all acts which constitute the transaction of business within the meaning of its terms. Further light is thrown upon the same question by the initial provisions of the next succeeding section (1025) which require the corporation to file in the office of the Secretary of State a certified copy of its charter with a sworn statement of “the proportion of its capital stock represented by its property and business in Missouri,” and to pay the incorporating taxes and fees thereon, as preliminaries to the issue of its certificate of authority to do business in the State. These last provisions are directed against companies “now or hereafter doing business within this State, ’ ’ and contain no provision limiting the duty to the time before they begin the transaction of their business here. The duty is a continuing one, and if it is forgotten or neglected or eváded today the corporation is not outlawed so that it must pack up its effects and leave the State, but the duty is expressly continued by the very words of the law creating it; and by the next section the punishment is fixed, not by outlawry, but by fine. Recapitulating the process of naturalization of the foreign corporation in the order in which the process is prescribed by the statute: (1) the establishment of an office full-fledged, for the performance of the duties relating to its incorporation; (2) the filing of its charter and other information necessary to subject it to police and revenue laws of the State; (3) the issue of its certificate. Having done this it may enter upon the employment of that portion of its capital stock upon which it has paid its incorporation fee, in the transaction of the business for which it was incorporated, and make all contracts necessary to that end. The statute is expressed with the greatest grammatical precision, and until we attempt to distort it by substituting our own ideas for those evidently in the minds of its framers, we have little difficulty in its construction.

This court expressed the same view in Hogan v. City of St. Louis, 176 Mo. 149, in which the Kern Company, a New Jersey corporation not domiciled in Missouri but having its office in New York, had agreed to light a considerable portion of the city of St. Louis. The case came here by appeal from a decree of the St. Louis Circuit Court refusing to enjoin the company from carrying out the contract on the ground that it had not qualified itself to transact business in this State by complying with the statutes we are now considering. In affirming the judgment the court said, through Valwant, J.: “But we do not consider it material whether the contract was made in St. Louis or in New York; we refer to the fact merely to illustrate the difference (in relation to the term ‘transact business’) between entering into a contract to do an act and the performance of the act. The one may be lawful per se and the other lawful only on condition. 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. . . . Now, when our statutes say that a foreign corporation shall not ‘transact business’ here until it establishes a public office in this State where books are kept and process may be served, and until it pays its quasi-incorporation tax and takes out its license, do they mean that the corporation must do all those acts before it can lawfully enter into a contract to do any business here? Does our law mean that when advertisements inviting bids on public or private works in this State are read by foreign corporations they are to under stand that they have not the right to bid and have their bids accepted unless they shall have already complied with the terms of our statute to enable them to transact business here? No, that is not the meaning of our statutes. No such policy of exclusion has ever been shown in any of our legislative acts; foreign corporations have always been invited and encouraged to come. The obtaining of a desirable contract is sometimes an inducement for a foreign corporation to come into the State; it is not bound to establish itself here before it can obtain such a contract. Entering into a contract like the one in question undoubtedly is ‘transacting business’ within the unlimited meaning of the term, but that is not the sense in wnich the term is used in the statute just quoted. As there used it means carrying on the work for which the cor*; poration was organized, and in its application to the facts in this case it means performing the work called for by the contract. ’ ’

It is true that in United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, this court, speaking by Burgess, J.,. ref erring to these statutes said: “They not only declare all contracts entered into in this State by foreign corporations not complying therewith, void, but inhibited the institution of any suit thereon;” but it is evident that the learned judge was speaking only of the facts before him and did not intend to announce the general rule that the inhibition was against the making of any contract instead of being directed against its subject-matter. The true rule was stated by Wood-son, J., in the opinion of the court in Roeder v. Robertson, 202 Mo. 538, as follows: “It was not the intention of the Legislature to prohibit the enforcement of valid contracts made by foreign corporations in their own States with citizens of this State. There is nothing in our laws which denies the right of such corporations to enforce valid contracts, whether made in this State or not.” This interpretation is, therefore, not only founded on the natural meaning of the words of the statute, but has been affirmed and finally settled by the adjudications of this court.

But it is insisted that we should take into consideration the fact that at the time this lease was dated and seems to have been made the respondent was already doing a general business in violation of the law and that the subject-matter of the lease was in furtherance of that business and it was therefore in violation of the law and void. We will, therefore, for the present purpose only, assume that, although the respondent had for years occupied the same building as the tenant of the same lessor, the lease was not only made on the date of its date but that it entered under it on the first day of January, 1902, the date appointed in the instrument, and maintained its office there until it received its certificate on the 13th of the same month. It also continued to hold the same premises under the same lease during the succeeding five years and up to the time of the service upon it by appellant of the notice to quit which laid the foundation of this .action. The presumption is that during’ that time it paid the monthly installments of rent when due, and the evidence is that it continued to tender the same on the, date of payments fixed in the lease, each month up to the time of the trial. During all this time its certificate was a matter of public record and there is no claim that the lessor did not have independent knowledge of its existence. Having, through all those years received its benefits upon the theory of its validity, he will be held by his ratification to have supplied the only element necessary to complete it at a time when the respondent was competent to take under its provisions. This effect follows whether it was void or only voidable, and the parol ratification gives effect to the written instrument according to its terms. [Austin v. Loring, 63 Mo. 22; Clyburn v. McLaughlin, 106 Mo. 521; Hartman v. Hornsby, 142 Mo. 368; Ansonia v. Cooper, 66 Conn. 184; same case, 64 Conn. 536; 21 Smith’s Leading Cases (5 Am. Ed.), 662.]

It follows that the judgment on the verdict must be and is affirmed.

PEE’ CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.

CONCURRING OPINION.

WOODSON, P. J.

I concur in all of the opinion written by our learned commissioner, in this case, except that part which treats of the alleged ratification of the lease by the appellant.

The ratification of a contract, which is absolutely prohibited by statute, will no more be recognized and enforced by the courts of this State, than they would recognize or enforce the contract itself. [United Shoe Machinery Co. v. Ramlose, 231 Mo. 509, l. c. 531 to 541, and cases cited. ]

All contracts absolutely prohibited by statute rest upon precisely the same foundation that contracts involving fraud and immorality do. The courts will leave the parties thereto in the position in which they have thereby placed themselves. [See case previously cited.]

But independent of the ratification, the opinion, in my judgment reaches a proper conclusion, and for that reason, I also concur in the result thereof.


author: LAMM, J.

text:
    AUGUST W. KOEHLER et al., Appellants, v. JAMES PEAKE et al.
    Division One,
    May 31, 1913.
    APPEAL: Dismissal Upon Stipulation: Without Revivor. Under Sec. 2075, R. S. 1909, a revivor, where one of the appealing plaintiffs has died, is not necessary in order that the appeal- may be dismissed in accordance with a stipulation entered into by the sole surviving plaintiff and respondent.
    Appeal from Carter Circuit Court. — Mon. W. N. Evans, Judge.
    Dismissed (by stipulation).

      J. W. Chilton for appellants.

      L. B. Shuclt and Louis F. Dinning for respondents.
   LAMM, J.

Suit to quiet title to land in Shannon county. Defendants Peate, Cox and Woodside were decreed to have none, and abide the decree. Plaintiffs were also decreed to have none and title was decreed in defendant Missouri Mining and Lumber Company. Plaintiffs appeal.

At a certain time, the cause was regularly reached on the docket and submitted here .on briefs. While thus under submission and assigned for an opinion, a stipulation was filed showing that 'plaintiff, Julia Worth Wengler, was the sole surviving appellant and that the cause was to be dismissed at the costs of said Missouri Mining and Lumber Company in the Supreme Court, no action to be taken as to costs nisi — - they having been settled.

Under section 2075, Revised Statutes 1909, and cases interpreting it, it would seem that a revivor was not necessary to permit the stipulated disposition of the cause.

The case is one, then, to which the saying applies: A short horse, soon curried.

Therefore, by virtue of the stipulation, the cause should be dismissed at the costs of respondent, said company, in this court. It is so ordered.

All concur.


author: BROWN, C.

text:
    SECURITY STATE BANK, Appellant, v. W. B. SIMMONS.
    Division One,
    May 31, 1913.
    INTERSTATE COMMERCE: Importing Books: Secs. 1024-1026, R. S. 1899, No Bar to Suit on Notes. A contract for soliciting orders for books to be imported into this State and delivered by agents of the company direct to subscribers, is a transaction of interstate commerce, and the statute, Secs. 1024, 1025 and 1026, R. S. 1899, providing that no foreign corporation which has not complied with its provisions can maintain suit in this State upon any demand, does not afford a defense to notes exe- . cuted to a foreign corporation upon such contract as consideration.

      Appeal from Crawford Circuit Court. — Hon. L. B. Woodside, Judge.
    Beversed and remanded.

      Gratia E. Woodside, J. D. Gustin and G. G. Dalton for appellant.
    (1) The court should have given the peremptory-instruction to find for the plaintiff requested at the close of the defendant’s evidence. "Where the facts are admitted, or there is a total failure of a defense pleaded, the application of the law is a matter for the court. Ford v. Dyer, 148 Mo. 528; Hite v. Bailroad, 130 Mo. 132; "Wolff v. Campbell, 110 Mo. 114; Clemens v. Knox, 31 Mo. App. 185; Bank v. Hainline, 67 Mo. App. 483. The undisputed testimony and documentary evidence conclusively established the interstate character of the business in which the notes were given, and the defense of failure of consideration and notice thereof wholly failed. This latter defense was taken from the jury by .the court, with the acquiescence of the defendant. (2) The court erred in refusing instructions 2, 3 and 4, requested by plaintiff, submitting a correct test of the interstate or intrastate character of the business of the corporation. United States v. Swift & Co., 122 Fed. 529; United States v. Bailroad, 149 Fed. 486; Shoe Co. v. Bubber Co., 156 Fed. 1; Text-book Co. v. Pigg, 30 Sup. Ct. 481; Text-book Co. v. Gillespie, 229 Mo. 397 ; Bogers v. Iron & Foundry Co., 167 Mo. App. 228. Under these authorities, which contain the latest expressions on this subject from the Federal Court of last resort and the Supreme Court of Missouri, the instructions above were correct declarations of the law of this case. The test is not the location of the corporation, its offices, officers, agencies, or business, but whether the business or transaction under review is interstate in its character.

      J. J. Cope and IF. P. Elmer for respondent.
    (1) A foreign corporation organized for pecuniary profit must comply with the provisions of the stat- . utes of this State regulating and licensing such corporations before it is authorized to do business within the State and until it has complied with such statutes it is not authorized to maintain any suit or action in any of the courts of the State and is subject to a fine, and the contracts of such corporation are wholly void, are not assignable and cannot be enforced in the hands of any subsequent holders. The leading case on this question is cited first below. Amusement Co. v. Amusement Co., 192 Mo. 404; Young v. Niles. & Scott Co., 122 Mo. App. 392; R. S. 1909, secs. 3037, 3039, 3040; ■Amalgamated, etc., Co. v. Mining Co., 221 Mo. 7; Chicago, etc., Co. v. Simms, 197 Mo. 507; Shoe Co. v. Ram-lose, 210 Mo. 631. (2) Contracts executed in pursuance df business transactions within this State by unlicensed corporations are void. Amalgamated, etc., Co. v. Mining Co., 221 Mo. 7. Such contracts to be performed in this State are null and void and cannot be enforced and are not negotiable or assignable. Shoe Co. v. Rámlose, 210 Mo. 631.
   BROWN, C.

This is a suit to recover the amount :of two negotiable promissory notes for $150 each, executed by the defendant to the Compen- ^ J T ,. a dium Company, Inc., a corporation oi Virginia, and by the payee indorsed in blank without recourse to the plaintiff. The payee was the owner.of a copyrighted book, “The Simplex Farm Compendium.” The corporation had not complied with the laws relating to the licensing of foreign corporations to do business in this State.

Sometime in February, 1908, A. W. Miller, the president of the Compendium' Company, with two canvassing agents, J. F. Dangerfield and W. H. McLeod, came to Salem in Dent county, rented two rooms as an office, furnished them with a borrowed desk and some chairs, and began canvassing for the books and appointing agents for that work. They took orders for several hundred of the books at $3.50 each, which were shipped from Eoanoke, Virginia, to them, or some one of them, at Salem, placed in their office, and from there delivered to the subscribers. Either from having ordered more than was necessary to fill the subscriptions, or because some of the books subscribed for were not taken, there were a number left over, some of which were sold and delivered to their agents as sample copies for one dollar. When Mr. Miller came he announced his intention of establishing agencies, and within the next two or three months seems to have secured ten agents, with exclusive territory, on the same terms as were made with the defendant.. The contract with defendant is as follows:

“general agent's appointment.
“This agreement, made and concluded the 29th day of April, 1908, by and between The Compendium Company, Inc., of Eoanoke, Virginia, party of the first part and W. B. Simmons of Salem, Mo., party of the second part.
“Whereas, the party of the first part being the-manufacturers and sellers of the ‘Simplex Farm Compendium’ and the party of the second part desires to sell said Compendium in the territory hereinafter mentioned and to acquire from the party of the first part said Compendiaras in such numbers and at such prices as hereinafter stated.
“Now, therefore, this agreement witnesseth, that for and in consideration of the sum of three hundred dollars, (a royalty on 300 ‘Simplex Farm Compendiarías,’) to be paid according to the obligations this day given by the party of the second part, said party of the first part does this day appoint the party of the second part its sole and exclusive agent, to sell the ‘Simplex Farm Compendium’ in the county of Wright, State of Missouri, but not elsewhere, except as herein-, after specified, for the term of one year (1) from the date hereof, with the right to employ subagents to assist him in selling the same in said territory, hut no ‘Simplex Farm Compendiums’ at any time to he sold at retail for less than three and one-half dollars each. Also, the right of ordering all ‘Simplex Farm Compendiums’ he may want for the term of this agency directly form the manufacturers, according to contract with The Stone Printing & Manufacturing Company, of Roanoke, Va., a copy of which is hereto attached and made a part hereof. Also, to have the right and privilege, equally with first party or its agents, of selling the ‘Simplex Farm Compendium’ in the counties of Crawford, Phelps, Dent, Texas or Shannon, State of Missouri, for the time specified above; and for each two hundred ‘Simplex Farm Compendiums’ sold and ordered from the manufacturers by said second party, he shall have the right to sell the ‘ Simplex Farm Compendium’ in any unassigned county in the States of Missouri, Kansas, Oklahoma, Arkansas or Texas which he may select, for the same time as afore stated; and shall all the good territory in said States be assigned, then he shall have.the right to select any unoccupied county in the United States, without any further obligation or consideration on his part, and the first party will grant to no other agent the right to sell in such territory so selected.
“The party of the first part further agrees to furnish said party of the second part with good agricultural counties for three (3) years from this date, and also agrees to furnish him with one sample ‘Simplex Farm Compendium’ and all necessary blanks, on or about the 15th day of May, 1908, free of charge.
“No representations or statements made by any salesman, agent, or other person, in addition to what is specified in this instrument, shall bind the party of the first part.
“It is mutually agreed by and between the parties hereto, that for every copy of the ‘ Simplex Farm Compendium’ sold, delivered, and collected for by the said party of the second part, or his subagents he shall receive as his commission and payment for services and the commission and services of all his subagents, the sum of two dollars and fifty cents ($2.50) on each copy so sold.
“Said party of the second part here accepts the appointment as agent aforesaid, under the terms, stipulations, conditions, and covenants in this instrument contained, and covenants, promises, and agrees upon his part to keep and perform all the covenants, conditions, stipulations and agreements herein contained to be by him kept and performed; to pay or cause to be paid all persons employed by him as subagents, and persons connected with the sale and delivery of said ‘Simplex Farm Compendium,’ and to save and keep harmless the said party of the first part from any of the aforesaid charges, claims or demands.
“In witness whereof, the parties hereto have hereunto set their hands the day and year first above written.
“The Compendium Co. Inc. (Seal)
“By A. W. Miller, Pres.
“W. B. Simmons (Seal)”

The contract of the Stone Printing & Manufacturing Company referred to and made a part of the foregoing is as follows:

“stone PRINTING AND MANUFACTURING CO.
Manufacturers of the
SIMPLEX FARM COMPENDIUM.
Reference:
Dun and Bradstreet. Roanoke, Va.
“In consideration of the money deposited with us, and other considerations, we agree with The Compendrum Co., Inc., and all parties who may be authorized by the said Compendium Co. to sell the Simplex Farm Compendium, to manufacture said book in every way equal to and as perfect as the samples manufactured by us, which are carried and shown by the Compendium Co. and its agents. Said book is made of good quality of writing paper, bound in extra strong boards, best quality red leather back and'corners, and sides of the best quality blank book cloth, with gold fillet on back,' and sides stamped with special stamp of the Simplex Farm Compendium. And we further agree:
“First. That each and every copy of said Simplex Farm Compendium delivered by us shall be equal in every respect to the description given above. Defective copies may be exchanged for perfect ones.
“Second. That we will keep a sufficient number of books on hand to fill all orders promptly, in accordance with our contract with The Compendium Company.
“Third. That we will secure the most favorable rates by railroad or express, and will sell at one dollar per copy, pack and deliver on board cars in Roanoke, Virginia, in good .condition, all books sold, at the price of one dollar ($1.00) per copy. But orders will not be filled if so sold at retail for less than three dollars and fifty cents each.
“Fourth. That a failure to comply with any-of the terms of this contract will operate as a forfeiture of our rights, and we further agree to pay all parties to whom we sell the Simplex Farm Compendium all damages they may sustain by reason of our failure to keep this agreement.
“Witness our hands this eighteenth day of July, 1907.
“The Stone Printing & Manufacturing Co.
‘ ‘ By Al. A. Stone. ’ ’

Each of the agents, gave notes similar to those given by the defendant. These notes were discounted with the plaintiff and within three months from the time of their arrival Mr. Miller and' his two original agents left Salem.

The only defense made to the notes is that they are void because the payee had not complied with the provisions of sections 1024, 1025 and 1026 of the Revised Statutes of 1899, authorizing foreign corporations to do business in this State. The value of the book, which is a ledger containing a new and improved system of keeping farm accounts, was not questioned. On the other hand, its usefulness was highly spoken of by the witnesses for defendant.

That the notes sued on in this case were executed by the defendant is admitted. That the promises they evidence are founded upon a sufficient consideration was held by the court at the trial and is not questioned. The defense stands only upon the ground that the transaction in which they were made was one forbidden by the statutes of the State, and that therefore they are absolutely void. This was evidently the view taken by the trial court in submitting it to the jury, for the evidence was clear, and without inconsistency, except, perhaps, such as is to be expected from those slight aberrations of mental vision which frequently result from the interposition of self-interest or personal feeling. The appellant insists that the trial court was wrong, because the statute does not forbid such transactions, and, if it be so construed as to forbid them, as was done in this case, such construction violates that provision of the Constitution of the United States (art. 11, sec'. 8) which gives to Congress power to regulate commerce among the several states. The jurisdiction of this court is thus invoked to construe the Constitution. This provision has been so often before the courts that it is with diffidence, and fear of incurring the imputation of pedantry, that one ventures any-general observations concerning it. It may, however, he excusable to say that it affords a guaranty, of commercial prosperity founded upon the mutual interests of all, which no merely conventional union could give. The State is the proper guardian of the commercial activities within its own borders. It may be trusted to defend them against all adversaries. But the people of a common country are not adversaries. They must unite in the development and defense of their common interests, and it is for this reason that their commercial relations, as well as the coining of the money which furnishes the foundation for all commercial exchange, have been committed to Congress, and they have made the national Supreme-Court the final interpreter of the laws in this respect. It is to that court, therefore, that we must look for the final word on the subject.

The notes in suit constitute a part of a contract in which the defendant and maker was appointed selling agent of the payee and indorser, the Compendium Company, Inc., which is admitted to have been, at the time, a Virginia corporation, for a certain copyrighted hook called the “Simplex Farm Compendium.” The consideration of the note was this appointment and the rights accruing under it. These rights consisted, in the main, of exclusive territory in which to sell the bpok, and a guaranty that it might be purchased from the manufacturer, the Stone Printing and Manufacture ing Company at Roanoke, Virginia, at the price of one dollar per copy delivered on board the cars at that place, provided they had already been sold for three dollars and fifty cents each, but not otherwise. These terms were secured to selling agents by a contract between the Compendium Co. and the Stone Printing and Manufacturing Co., a copy of which was attached to the instrument of appointment, and made a part of it.

It is true that the statute invoked by the respondent (R. S. 1899, secs. 1024,1025,1026) required certain things to be done by a foreign corporation before a certificate should be given it authorizing it to do business in this State, and provided that no such corporation which should fail to comply with the provisions of the 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;” but,' as was said by Judge Woodson for this court in Roeder v. Robertson, 202 Mo. 538, “it was not the intention of the Legislature to prohibit the enforcement of valid contracts made by foreign corporations in their own States with citizens of this State. There is nothing in our laws which denies thq right of such corporations to enforce valid contracts, whether made in this State or not.” In Crutcher v. Kentucky, 141 U. S. 47, the Supreme Court of the United States said: “To carry on interstate commerce is not a franchise or a privilege granted by the State; it is a right which every citizen of the United States is entitled to exer•cise under the Constitution and laws of the United States; and the accession of mere corporate facilities, as a matter of convenience in carrying on .their business, cannot have the effect of depriving them of such right, unless Congress should see fit to interpose some contrary regulation on the subject.” This statement of the law was approved in International Text-book Company v. Pigg, 217 U. S. 91, and was followed by this court in International Text-book Company v. Gillespie, 229 Mo. 397, in which the opinion of Mr. Justice Harlan in the Pigg case is substantially quoted in full, with the statement that it is binding on this court. Its reason is evident. It is open to the observation of all that commerce among the States is largely conducted by corporations. Its carriers, whether by land or water, together with the importers, -manufacturers and merchants which produce and sell the articles of which it largely consists are almost universally incorporated, -so that corporations -are the agencies and instrumentalities of its prosecution; and if these could not go into a State other than that of their domicile without its permission, the control vested by the Constitution in Congress would be a mere form of words without vitality. Their right to transact this business does not depend upon the authority or permission of the State in which it is done, because it is within the province of national and not of State legislation. Conditions imposed on their right to do business wholly within the State and subject to State legislation would be open to no such objection. [Crutcher v. Kentucky, supra.]

The only question, then, for our consideration is whether the contract which constitutes the consideration of the notes in suit relates to commerce between the States. The fact that it may have required an office and employees to transact it is unimportant, as is held in the International Text-book case, supra. In those cases the company had elaborate facilities of that description. The test applied to .determine the character of the transaction was quoted from the opinion of Judge Sanborn in Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1, 17, as follows: “Importation into one State from another is the indispensable element, the test, of interstate commerce; and every negotiation, contract, trade and dealing between citizens of different States, which contemplates and causes such importation, whether it be of goods, persons, or information, is a transaction of interstate commerce.” In those cases the company solicited contracts for the sale of “information” to be imported into the States of Missouri and Kansas to be paid for by the recipients as agreed in writing. This was held to be interstate commerce. In this case the contract is for soliciting orders for books to be imported into this State and delivered by the agents of the company ■ direct to the subscribers ordering them. We can see no difference between these cases so far as the question of commerce among the States is concerned. They both, come directly within the definition quoted supra, from the opinion of Judge Sanborn, and approved by the Supreme Court of the United States and this court. The judgment of the trial court is reversed, and the cause remanded for further proceedings in accordance with this opinion.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.