Alfred M. Best Co., Inc. v. Goldstein
| Decision Date | 12 July 1938 |
| Court | Connecticut Supreme Court |
| Parties | ALFRED M. BEST CO., Inc., v. GOLDSTEIN. |
As Amended on Denial of Reargument Oct. 7, 1938.
Appeal from City Court of New Haven; Joseph Weiner, Judge.
Action by the Alfred M. Best Company, Inc., against Maxwell H Goldstein to recover balances due on several contracts wherein the defendant filed a counterclaim to obtain reimbursement for amounts paid on the contracts. The case was tried to the court. Judgment for defendant, and plaintiff appeals.
Error and a new trial ordered.
A foreign corporation whose name appeared on the door of an office in the state and in telephone book, and which used office merely to accommodate parties in communicating with home office, and whose agents solicited, within the state contracts which were accepted outside the state, was not " transacting business" in the state within statute requiring corporations transacting business in state to procure a license and file a copy of its charter before bringing action on the contracts. Gen.St.1930, § 3488 et seq.
Bernard P. Kopkind, Clarence A. Hadden, Daniel Pouzzner, and William L. Hadden, all of New Haven, for appellant.
Maxwell H. Goldstein, of New Haven, pro se.
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.
The plaintiff brought this action on the common counts to recover balances claimed to be due upon four written contracts providing for representation of the defendant for different periods in ‘ Best's Recommended Insurance Attorneys.’ The contracts were identical in form and one of them, plaintiff's Exhibit A, is appended in the footnote.[1] The answer of the defendant was a denial, and as a second defense, he alleged fraud and false representations in procuring the contracts. As a third defense, he alleged that the plaintiff was a foreign corporation and had transacted business in this State before filing a certified copy of its charter in the office of the secretary of state, and had not appointed the secretary its attorney for the service of process upon it as required by General Statutes, §§ 3488 and 3489, and had failed to pay the fees required by § 3495 before instituting this action. General Statutes, § 3491, provides that a foreign corporation may not bring suit on any of its contracts until it complies with the provisions of §§ 3488 and 3489. The defendant also filed a counterclaim asking reimbursement for the amounts paid upon the contracts. The case was tried to the court and judgment rendered for the defendant upon the ground that the plaintiff could not maintain an action in this State because of its failure to comply with the provisions of §§ 3488 and 3489.
From the finding of the court with such corrections as the plaintiff is entitled to the following material facts appear: The plaintiff is a New York Corporation with its principal place of business in New York City. It publishes various reports upon the financial condition and management of insurance companies. It also publishes monthly magazines and furnishes weekly bulletins and other services to its subscribers. It publishes various books of interest in the insurance field, among others one designated as ‘ Best's Recommended Insurance Attorneys.’ This publication lists attorneys located in every part of the United States and is circulated throughout the country. The plaintiff had in its employ H. Laurence Reinhardt, an agent who traveled through the country soliciting attorneys for listing in this publication, and he executed with many attorneys contracts on a printed form identical with those executed with the defendant. In October, 1927, Reinhardt, as representative of the plaintiff, secured from the defendant a contract for listing in this publication, and in October, 1930, February, 1931, May, 1931, and September, 1931, he secured from the defendant four further contracts which are the ones in suit in the present case. The contracts in each case were signed at New Haven by the defendant and by Reinhardt as ‘ approved,’ a duplicate was left with the defendant and the original forwarded for acceptance to the plaintiff at its home office in New York, when it was stamped by the treasurer of the company, Arthur Schneider, with his initials, A. S., and a letter mailed to the defendant informing him that the contract had been accepted.
In 1930, Reinhardt acquired twelve contracts from attorneys in this State for listing in this publication and the corporation through another representative acquired eleven others; and for the years 1931-1936 inclusive the number of Connecticut attorneys listed in the publication ranged from twenty-three to twenty-nine. In most of the publications of the plaintiff there appeared upon the first white page and elsewhere in them the information that it maintained its home office in New York City, and branch offices at Chicago, Cleveland, Atlanta and Hartford, Connecticut. At Hartford there was an office and the plaintiff's name appeared upon the door; and, though the office was occupied by others, telephone calls for the plaintiff were received there and its name appeared in the telephone book. It nowhere appears in the finding that the plaintiff had any bank account, money or property in this State or that any business was carried on at its Hartford office other than in furtherance of the convenience of the company and its agents, or that it had any representative constantly in this State.
The question involved in this appeal is whether the plaintiff was ‘ transacting business' in this State so as to bring it within the purview of General Statutes, §§ 3488, 3489 et seq. The trial court concluded that because the contracts were signed by both parties thereto in this State and the plaintiff had an office at Hartford, it was doing business within the State and was subject to the provisions of our statutes requiring it to file a copy of its charter with the secretary of state and appoint the secretary as its agent for the service of process, and pay the license fees required under our law. The only business which the plaintiff corporation transacted in this State was solicitation of contracts for the insertion of names in its publication printed without the State, and except for such solicitation all the business of the plaintiff was carried on outside the State. Each contract contained the provision that it constituted the entire agreement between the parties, and that the plaintiff in its discretion might reject any contract upon refund of the amount paid therefor or discontinue it at any time without notice upon refund of the proportionate unearned amount paid. The right of the plaintiff to reject the contract at its discretion and the facts that the contract called for its approval, that it was so approved, and that the defendant was notified of that approval show the intent of the parties to have been that the entire agreement was not to become effective until approved. The signing of the agreement was no more than an offer which ripened into a contract only when approved by the company. Had the defendant paid the agreed price, this would have been merely an incident to the offer. The unqualified right of the plaintiff to reject the contract prevented any legal right arising under it while it remained executory. Gurfein v. Werbelovsky, 97 Conn. 703, 707, 118 A. 32; 1 Williston, Contracts (Revised Ed.) § 43, p. 126. Consequently New York was the place where the last thing had to be done in order to make the agreement between the parties effective. The place of contract was New York. Restatement, Contracts, Vol. 1, § 74, and Connecticut Annot.; Restatement, Conflict of Laws, §§ 326, 331; Eager Co. v. Burke, 74 Conn. 534,...
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