Altheimer & Baer, Inc. v. Vergal Bourland Home Appliances, 16438

• Decision Date: 21 June 1963
• Docket Number: No. 16438,16438
• Citation: 369 S.W.2d 478
• Parties: ALTHEIMER & BAER, INC., Appellant, v. VERGAL BOURLAND HOME APPLIANCES et al., Appellees.
• Court: Texas Court of Appeals

Page 478

369 S.W.2d 478

ALTHEIMER & BAER, INC., Appellant, v. VERGAL BOURLAND HOME APPLIANCES et al., Appellees.

No. 16438.

Court of Civil Appeals of Texas, Fort Worth.

June 21, 1963.

Rehearing Denied July 19, 1963.

Ungerman, Hill, Ungerman & Angrist, and W. M. Hill, Dallas, for appellant.

Crocker & McDonald, Irby & McConnico, and Milledge McConnico, Fort Worth, for appellees.

LANGDON, Justice.

This is an appeal from a summary judgment. On May 1, 1959, the appellant Altheimer & Baer, Inc., a foreign corporation created and existing under the laws of the State of Illinois, instituted this suit against Vergal Bourland Home Appliances, a Texas Corporation, and Vergal Bourland individually to collect on 33 trade acceptance notes in the total principal sum of $11,676.28, which were accepted by appellees, and duly signed for merchandise sold and shipped to them by the appellant, the full and prompt payment of which was unconditionally guaranteed by Vergal Bourland individually. Vergal Bourland answered by general denial and adopted the Vergal Bourland Home Appliance Corporation's original answer and cross-action. Thereafter the latter was adjudicated a bankrupt and Elmo Irby was substituted as cross-plaintiff in lieu thereof. The cross-action assertedly owned by Elmo Irby was severed from appellant's action on the trade acceptance notes against the original defendants.

On January 26, 1962, the original defendants and Irby filed a motion for summary judgment contending that because the appellant, a foreign corporation, had not obtained a certificate of authority it was prohibited from maintaining its suit under the provisions of Sec. A, Art. 8.18 of the Business Corporation Act, Vol. 3A, V.A.T.S.

On February 5, 1962, the original defendants herein filed a supplemental answer containing a plea in abatement based on the same grounds.

The summary judgment entered by the court on October 19, 1962, contained the following language, 'that Altheimer and Baer, Inc., take nothing against the Defendants by its suit; and that said Plaintiff's suit be, and the same is hereby dismissed.' Although we have concluded that the judgment of the learned trial court must be reversed on other grounds hereinafter stated, we deem it advisable to point out that a judgment denying a recovery should not be entered against a nonqualified corporation. The judgment should be one merely dismissing the suit. 14 Tex.Jur.2d, p. 758, Sec. 658, and cases cited therein.

Appellees filed a motion to strike the affidavit of Milton L. Altheimer on the grounds it violated Rule 166-A, Texas Rules Civil Procedure. The hearing from which this appeal was taken was had on February 8, 1962, at which time the court took the matter under advisement. On June 7, 1962, the court by a letter to the attorneys advised that he was granting appellees' motion for summary judgment and requested their attorneys to prepare an order in accordance with his pronouncement. In the letter the court indicated that the previous affidavit of Altheimer contained conclusions. The appellant thereafter requested permission to file an additional affidavit. The court granted permission and the additional affidavit was sworn to on June 19, and filed June 21, 1962. The record reflects that the court signed a certificate stating: '* * * I felt that in my discretion I could and did consider the further affidavit of Milton L. Altheimer.' In a subsequent certificate the court stated: '* * * I read the Affidavit which was filed after my pronouncement of judgment and found in it no grounds for change in my decision which I had announced on June 7, 1962.'

In our opinion the court had discretion under Rule 166-A, T.R.C.P., to permit the filing of the affidavit.

Since the record clearly shows that the court granted permission to file it and that it was read and considered by the court before the summary judgment was signed some 4 months later, we have concluded that the motion to strike the affidavit should be and same is hereby overruled.

The additional affidavit of Milton L. Altheimer will therefore be considered as a part of the record in this case as it was before the trial court and considered by it.

The only remaining question to be determined on this appeal is as follows: Did the indebtedness which is made the basis of this suit arise out of transactions and activities which are essentially interstate in nature or intrastate? If they were interstate the appellant may maintain its suit and if intrastate it may not.

In our opinion the evidence is not such as to warrant the trial court to find as a matter of law that the transactions involved were intrastate in nature. We find and hold that the evidence raised an issue of fact.

A review of the record reflects that the following facts are undisputed:

(1) The appellant, a foreign corporation, has not procured nor made any application for a certificate of authority from the Secretary of State of Texas.

(2) That before and during the pertinent period Mr. E. H. E. 'Andy' Anderson, hereinafter referred to as Anderson, was employed by appellant as its sales representative in Texas and surrounding states and was authorized to solicit orders for transmittal to appellant's home office in Chicago, Illinois, for acceptance. He was further authorized to make recommendations for the scheduling of advertising with regard to particular sales promotions and assist the customer in setting up displays for use at such times.

(3) The indebtedness evidenced by the thirty three (33) trade acceptance notes upon which this suit was initiated arose out of the sale of merchandise by appellant to appellees. The purchase orders were obtained by Anderson from appellees and forwarded by him to the appellant's Chicago office for acceptance. The merchandise was shipped from Chicago, Illinois, to the appellees in Fort Worth, Texas. The purchase orders for such merchandise provided for shipment FOB the shipping point and thus title to all such merchandise vested in appellees upon receipt thereof by the carrier.

(4) The prepared advertising and promotional material...