C.B. Rogers & Co. v. Simmons

• Decision Date: 06 January 1892
• Citation: 29 N.E. 580,155 Mass. 259
• Parties: C.B. ROGERS & CO. CORP. v. SIMMONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 259

29 N.E. 580

C.B. ROGERS & CO. CORP. v. SIMMONS.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1892

COUNSEL

Harrison

Dunham, for plaintiff.

Chas Steere, for defendant.

OPINION

KNOWLTON J.

The first exception was to the refusal of the court to rule that the action could not be maintained because the plaintiff corporation failed to comply with the provisions of the statute of 1884 c. 330, which requires every foreign corporation doing business in this commonwealth to appoint the commissioner of corporations its attorney, on whom service of process can be made, and also to file a copy of its charter or certificate of incorporation, with a statement of the amount of its capital stock, and the amount paid in thereon to its treasurer, before beginning to do business here. The contention is that any business done by a foreign corporation without first filing the papers required by the statute is illegal, and that our courts will not aid such a corporation in the enforcement of contracts or the protection of alleged rights founded on such transactions. But we are of opinion that these provisions are directory, merely, and that, while a failure to comply with them subjects the officers and agents of the corporation to severe penalties it will not invalidate its contracts, or deprive it of the right to sue in the courts. Indeed, the statute expressly declares that "such failure shall not affect the validity of any contract by or with such corporation;" and this provision is sufficiently expressive of the intention of the legislature to include contracts which arise by implication of law, as well as express contracts. In Chase's Patent El. Co. v. Boston Tow-Boat Co., 152 Mass. 428, 28 N.E. 300, under a statute somewhat similar which contained no such clause, it was held that contracts made before filing the papers required by law to be filed prior to the commencement of business can be enforced, and the same doctrine must be laid down under the statute now before us.

The remaining exceptions are to the refusal of the court to rule that certain charges made by a constable for the service of an execution were proper, and to the ruling that they were improper. The execution was levied on personal property which sold for $459.01, and the officer's fees and charges on the execution amounted to $152.80. Of this sum the court disallowed items amounting to $54.97, and allowed the balance. The first question arises on the disallowance of that part of the bill paid for storage, which is for the time between the entry of the writ and the date of the judgment. This cannot be allowed as a part of the expense for serving the execution, but it should have been presented to the court by way of an additional return on the writ before the final judgment, so that it might be taxed in the costs of suit and included in the judgment.

The next item is for a payment for care of the property two days and two nights after the auction sale on the execution, and the next three items are for personal services of the officer in preparing advertisements of the auction sale, posting notices, making schedules of the property, and conducting the sale, and for small sums paid for articles used in preparing the property for the sale, and for certain things used incidentally to the sale. It is an important principle founded on considerations of public policy, that the right of officers to charge for the service of a legal process is found only in the statutes, and is limited by their provisions. In Cutter v. Howe, 122 Mass. 541, it was decided that an officer had no right to appoint a keeper of personal property attached, and put him in permanent charge of it; but that it was his duty, as soon as may be after the...