Summary
interpreting § 1180, RSMo 1919, a similar provision to § 508.040
Summary of this case from State ex rel. Reedcraft Manufacturing, Inc. v. KaysOpinion
Opinion filed December 21, 1928.
1. — Venue — Action Against Corporation Should be Brought in County Defendant Has Office, or Where Cause of Action Accrued. Where defendant corporation contracted with plaintiff to purchase two cars of fire brick clay, the purchase being made by sample from St. Louis office, and plaintiff, living in Phelps County, Missouri, shipped one car, and on arrival of car at St. Louis, defendant rejected said car because not as sample, held cause of action accrued in St. Louis, and Phelps County Circuit Court had no jurisdiction, defendant having no office in said county.
2. — Courts — Waiver to Jurisdiction. Where defendant filed answer setting up plea to jurisdiction and limited its appearance for such purpose alone, held defendant did not waive question of jurisdiction.
3. — Venue — Suits Against Corporations. Missouri statute provides that suits against corporations shall be commenced (1) in county where cause of action accrued, or (2) in county where such corporation shall have or usually keeps an office or agent for transaction of its usual and customary business. Section 1180, R.S. Mo. 1919.
Appeal from Phelps County Circuit Court. — Hon. W.E. Barton, Judge.
REVERSED AND REMANDED ( with directions).
William W. Crowdus and Buder Buder for appellant.
(1) An action against a corporation cannot be instituted in any county other than the county in which either the cause of action accrued or in which the corporation has and usually keeps an office or agent for the transaction of its usual and customary business. Sec. 1180, R.S. 1919; State ex rel. v. Jones, 270 Mo. 230; Banker's Life Ass'n v. Shelton, 84 Mo. App. 634; Darby v. Weber Implement Co., 203 Mo. App. 200, 208 S.W. 116; Winter v. Commercial Bank, 238 S.W. 833; State ex rel. v. Gantt, 274 Mo. 490, 203 S.W. 964; Peak v. International Harvester Co., 194 Mo. App. 128; Moherstadt v. Newman Motor Cars, 204 Mo. App. 619; Barnett, Haynes Barnett v. Building Company, 137 Mo. App. 636; In the matter of State ex rel. Bank v. Davis, 314 Mo. 373. (2) As a general rule, the place of breach of a contract, rather than the place of making the contract, fixes the place where the cause of action accrues. Momerstadt v. Newman Motor Cars. 204 Mo. App. 619; Barnett, Haynes Barnett v. Building Company, 137 Mo. App. 636, l.c. 648; Peak v. International Harvester Co., 194 Mo. App. 128; Perry v. Transfer Company, 19 N.Y.S. 239. (3) Where the fact that the cause of action did not accrue in the county of suit is not disclosed by the petition, and absence of jurisdiction on account of improper venue does not appear from or in the sheriff's return, the only way to question the court's lack of jurisdiction is by plea to the jurisdiction. Roberts v. National Assurance Co., 201 Mo. App. 239, 212 S.W. 390, l.c. 391-2. (4) The statement in the plaintiff's petition, to-wit: "Plaintiff further states that this cause of action against the defendant (a corporation), accrued in Phelps county, Missouri." is a mere legal conclusion, and therefore wholly worthless, is entirely eliminated from further consideration and it is as though it had not been pleaded. Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388, l.c. 397; Musser v. Musser, 281 Mo. 649, l.c. 664; Vogeler v. Punch, 205 Mo. 558, l.c. 577; Barnett, Haynes Barnett v. Building Company, 137 Mo. App. 636. (5) A buyer who orders a commodity of a certain quality to be transported by a common carrier F.O.B. tracks, at point of shipment, no time of payment, right to inspection, or time of acceptance being mentioned, is entitled to inspect the commodity at the point of destination within a reasonable time, for the purpose of rejection, and to rescind the contract if the commodity was not, at the time of shipment of the quality contemplated by the contract. This is true whether the sale be by sample or otherwise. N.W. Helm Feed Coal Company v. Butler County Milling Company, 218 Mo. App. 290, 269 S.W. 630, l.c. 632; Central Flour Mills Company v. Gateway Milling Company, 213 S.W. 131, l.c. 134; Fore v. Plant Seed Co. et al., 232 S.W. 169, l.c. 170; Lawson et al. v. M. Longo Fruit Co., 287 S.W. 796, l.c. 798; Thurnauer v. Gates, 280 S.W. 63.
Watson Allison for respondent.
(1) The defendant being a corporation and plaintiff's cause of action accruing in Phelps county, the circuit court of Phelps county had jurisdiction of the person of defendant. Section 1180, R.S. 1919. In the case at bar, a contract between the parties was completed in Phelps county, Missouri; plaintiff performed his part of said contract in Phelps county by delivering and tendering to defendant the clay in question F.O.B. car at Rolla. Having thus performed his part of the contract, plaintiff was then and there entitled to the consideration in said contract mentioned and his cause of action accrued then and there in Phelps county, Missouri. The title to the fire clay was passed to defendant (appellant) when the clay was loaded F.O.B. the car at Rolla, Missouri, and the railroad accepted said clay for defendant as its agent for the purpose of delivery. N.W. Helm Feed Coal Co. v. Butler County Milling Co., 269 S.W. 630. (2) Under section 1180, R.S. 1919, suits against corporations must be commenced either in the county where the cause of action accrued, or in any county where the corporation shall have or usually keep an office or agent for the transaction of its usual and customary business. St. Charles Savings Bank v. Thompson Gray Quarry Co., 210 S.W. 868; Lumber Company v. Lumber Company, 152 Mo. App. 386. (3) Defendant struck at the merits of the case in its motion for a new trial; especially in grounds numbered 4, 5, 6, 7, 8, 10, 11 and 12 in said motion for a new trial (appellant's Abstract, pp. 23, 24). Where, in defendant's motion for a new trial it struck at plaintiff's case on the merits, this had the effect of entering a general appearance. Case v. Smith, 257 S.W. 148, 215 Mo. App. 621. If a litigant appears in court in opposition to a matter affecting the merits of a cause, contests the same, objects to the introduction of testimony, and cross-examines witnesses therein, he thereby submits to the jurisdiction of the court over his person. Hayes v. Laclede Christy Clay Products Co., 274 S.W. 196; State ex rel. Compagnie Generale Transatlantique v. Falkenhainer et al., Judges, 274 S.W. 758.
This is an action for damages growing out of an alleged breach of contract for the purchase and sale of a car of fire clay. The suit was brought in the circuit court of Phelps county in which county plaintiff resides. Service was had on defendant in the city of St. Louis where its principal and only office or place of business was located.
The petition is in conventional form for breach of contract. Defendant filed a plea to the jurisdiction of the circuit court of Phelps county, appearing specially for that sole purpose. It is alleged in defendant's plea that defendant is a Missouri Corporation and a resident of St. Louis, Missouri, where its principal office and place of business was kept; that defendant never has kept an office or agent for transaction of its usual and customary business in Phelps county; that plaintiff's cause of action, if any, arose in the city of St. Louis and that defendant has not been found or served with a summons in this action in Phelps county, and that defendant has not entered its appearance or waived issuance of summons; that the contract was entered into in St. Louis and that the alleged breach occurred within the city of St. Louis; that the service of summons on defendant in the city of St. Louis did not give the Phelps county circuit court jurisdiction over defendant. Wherefore defendant moved the dismissal of the suit and that the writ of summons and sheriff's return be quashed. The trial court overruled the plea to the jurisdiction. Defendant refused to plead or appear further. Whereupon the court found the issues for plaintiff and rendered judgment in the sum of $190.14. Defendant appealed.
It is stated in defendant's brief that the place of accrual of the cause of action is the chief issue in the case. Plaintiff raises the further question of waiver. These two propositions will be considered in order.
At the hearing on the plea to the jurisdiction defendant offered evidence tending to prove that plaintiff submitted to it, at St. Louis, samples of clay; that after testing a certain sample of white clay it sent a written order for two cars thereof from defendant at Rolla for further test; that nothing was mentioned as to right of inspection; that plaintiff shipped defendant one car of clay, and notified defendant thereof by letter mailed at Rolla, Missouri; that defendant inspected the clay upon its arrival in St. Louis and there rejected the car of clay because it was not according to sample; that defendant notified plaintiff of the rejection of said car of clay by telegram; that it never inspected the clay at Rolla, maintained no office in Phelps county and had no agent or employee there representing it. Plaintiff offered no evidence at the hearing on the plea to the jurisdiction.
It is uncontroverted that when defendant ordered two cars of clay and plaintiff accepted same, the contract became complete and upon loading the car of clay at Rolla, title thereto passed to defendant. The right of inspection, however, was not thereby lost. Defendant retained the right to inspect at point of destination and, if the car of clay was not according to sample, defendant was not bound to accept same. [Helm Feed Coal Company v. Butler Co. Milling Co., 269 S.W. 630.] Defendant exercised that right and rejected the car of clay at the point of destination, to-wit: St. Louis. It is clear then, that if defendant breached its contract, such breach occurred in the city of St. Louis. The sending of the telegram by defendant to plaintiff rejecting the car of clay, gave rise to plaintiff's cause of action. The place of breach is usually the place of performance and it is there the cause of action accrues. In the case of Motherstadt v. Newman Motor Cars, 204 Mo. App. 619, 217 S.W. 591, this court states the law in language, as follows: "It is the breach of the contract rather than the making of it that accrues the cause of action and hence the place of the breach (or refusal to pay) rather than the place of making the contract fixes the place where the cause of action accrues. As a general proposition this is good law." [Citing authorities, l.c. 621.]
It is further held in that case that mere refusal to pay money, no place of payment being agreed upon, does not accrue the action at the place where the creditor resides or may be found when the refusal to pay is made. In Barnett, Haynes Barnett v. Building Company, 137 Mo. App. 636, l.c. 648, 119 S.W. 471, it is said that, "In such as were actions on contracts, the courts, in striving to ascertain the proper venue, laid stress on the place of breach. We add another authority for the proposition that the right venue is where the breach occurred, at least, if the contract was formed there, as it was in the case at bar." In Hibernia National Bank v. Lacombe, 84 N.Y. 367, l.c. 383, 38 Am. Rep. 518, we find a quotation from an eminent English authority which is in point here. It is there said in part that "`The cause of action arises when that is not done which ought to have been done; or that is done which ought not to have been done. But the time when the cause of action arises determines, also, the place where it arises, for when that occurs which is the cause of action, the place where it occurs is the place where the cause of action arises.'" In the case at bar the defendant committed a breach of the contract, if at all, when it refused to accept the shipment in St. Louis. It was there it committed the act which it should not have done without justification or excuse. No cause of action accrued at Rolla. The basis of the suit was the alleged breach which occurred in St. Louis. Our statute provides that in suits against corporations, the action shall be commenced either in the county where the cause of action accrued or where such corporation shall have or usually keeps an office or agent for the transaction of its usual and customary business. [Sec. 1180, R.S. 1919.] Since defendant's sole place of business was in the city of St. Louis and the cause of action accrued in that city, it follows the circuit court of Phelps county had no jurisdiction and the plaintiff's petition should have been dismissed on defendant's plea to the jurisdiction.
There was no waiver of the point as to jurisdiction. Defendant could have pleaded to the merits and have raised a question of jurisdiction in the same answer. [Roberts v. State Insurance Co., 26 Mo. App. 92.] Even participation in the trial would not necessarily constitute a waiver. [Peak v. International Harvester Co., 194 Mo. App. 128, 186 S.W. 574.] In this case the answer specifically and in the first instance raised the question of jurisdiction and defendant limited its appearance for that purpose only. The authority of the court was at no time recognized. Upon failure of the court to sustain its plea to the jurisdiction, defendant refused to plead further. Clearly there was no waiver. The judgment is reversed and the cause remanded with directions to dismiss plaintiff's petition without prejudice. Cox. P.J., and Bradley, J., concur.