Syllabus
by the Court.
"Want
of capacity to sue" has reference only to some legal
disability of the plaintiff, such as infancy, idiocy, or
coverture.
The
failure of a foreign corporation to comply with the laws of
this state before doing business therein is defensive matter
that should be pleaded in the answer as other defenses, and
the filing of a demurrer or other plea does not preclude the
setting up of such defense therein.
Although
the answer be indefinite and therefore vulnerable to a motion
to make more definite and certain, yet if evidence is
introduced, without objection, supplying omissions therein
such defect is thereby cured.
Where a
foreign corporation designates an agent in this state and
furnishes such agent its goods to be stored, exhibited for
sale, and sold in this state by such agent, and same are so
sold, such transactions constitute "doing business"
in this state by said foreign corporation.
Where
goods are shipped by a foreign corporation to its agent in
this state, not in response to an order from a purchaser, but
to be held in stock by such agent, and thereafter to be sold
and delivered from said stock in this state by said agent
such sale and delivery is not a transaction of interstate
commerce.
Commissioners'
Opinion, Division No. 1. Error from District Court, Jackson
County; Frank Mathews, Judge.
Action
by the Parry Manufacturing Company against John D. Bailey and
others. Judgment for plaintiff, and defendants bring error.
Reversed, with directions.
DAY, C.
This
action was commenced in the trial court by Parry
Manufacturing Company against John D. Bailey, United States
Fidelity & Guaranty Company, and John D. Manley Implement
Company, being subsequently made parties defendant. We shall
hereinafter refer to the parties as they appeared in the
trial court.
Plaintiff
sued defendant Bailey for the conversion of certain buggies
the property of plaintiff, and defendant Bailey filed a
general demurrer to plaintiff's petition, and, after same
was overruled by the court, filed his answer the first
paragraph of which was a general denial, and the second
paragraph was as follows:
"Further answering said petition, defendant says that
the plaintiff in this action is a foreign corporation,
organized and existing under and by virtue of the laws of the
state of Indiana, with its principal place of business
located in the city of Indianapolis in said state of Indiana,
as alleged in the first paragraph of the plaintiff's
petition. And the defendant further says that the plaintiff
is not entitled to maintain this action for the reason that
the said plaintiff has violated article 22 of chapter 20 of
Snyder's Statute of 1909 of the state of
Oklahoma, relating to corporations, which provides that every
foreign corporation shall be, before it is authorized or
permitted to transact business in this state or continue
business therein, if already established, shall by its
certificate under the hands of the president and seal of the
company appoint an agent who shall be a citizen of the state
and reside at the capital, upon whom service of process may
be made in any action in which said corporation be a party.
And said article further providing that no corporation which
has failed to comply with this provision 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; and that said plaintiff corporation has
violated said provision, in that they have been shipping
vehicles of different kinds into said state of Oklahoma in
the county of Jackson to one J. A. Chenoweth, who acted as
agent, or factor, for said plaintiff in the sale of said
vehicles, and defendant says, if the property as alleged in
plaintiff's petition was plaintiff's property (which
defendant expressly denies), that said property was shipped
to one J. A. Chenoweth, in Jackson county, state of Oklahoma,
as factor or agent for the said plaintiff, with instructions
to the said J. A. Chenoweth as factor or agent of the
plaintiff to sell and dispose of said goods for said
plaintiff corporation. And that the plaintiff by reason of
the violation of said statutes is not entitled to maintain
this action. Wherefore defendant prays judgment for his costs
in this behalf expended."
The
other defendants also answered, but we do not deem it
necessary to further consider them for a proper determination
of this cause. It seems that there was no reply or other
pleading filed to this answer. A jury was waived, and the
cause submitted to the court, and judgment was rendered in
favor of plaintiff, and defendants appeal.
The
record discloses that one J. A. Chenoweth was engaged in the
mercantile business at Altus, Okl., and entered into contract
with the Parry Manufacturing Company for the handling and
selling of its vehicles at his store in Altus. The contract
between Parry Manufacturing Company and Chenoweth was as
follows:
"Parry Manufacturing Company, a corporation, of
Indianapolis, Ind., hereby appoints J. A. Chenoweth its agent
for the sale of vehicles in Altus, Okl., with power and
authority to do the particular things hereinafter specified
and do no other different or additional things whatsoever,
and upon the following agreement, terms and conditions which
said agent agrees to comply with, do and perform. The
authority of said agent is restricted solely to the sale of
vehicles as hereinafter mentioned, and no power is granted
him to act for or represent said principal in any other
affairs, or to any further extent than herein prescribed.
(1) Said agent agrees to receive all vehicles shipped him f.
o. b. cars Indianapolis, Ind., pay freight to destination,
unload, uncrate property, store, and exhibit for sale, all
vehicles sent him by Parry Manufacturing Company, during the
life of this contract without making any charges of any kind
therefor other than covered herein.
All specifications for vehicles, whether on regular order
blank form used by Parry Manufacturing Company or otherwise,
shall relate to this special agency contract, become a party
thereof and be governed by its provision. All specifications
for vehicles shall be subject to approval and acceptance of
said principal at its home office in Indianapolis, Ind.
(2) Any and all vehicles supplied by said principal to said
agent shall be sold by him at retail in the usual course of
trade to bona fide purchasers for cash upon delivery, and
until in good faith sold by him shall remain the absolute
property of said principal, who may at will require same to
be returned and reshipped to Indianapolis, Ind., or delivered
to any agent or attorney of said principal. No title or
ownership to said vehicles or to proceeds of sale before
distribution, shall at any time vest in said agent and they
must be held separate for the principal.
(3) All proceeds accruing from sale of Parry Manufacturing
Company's goods supplied hereunder and received by said
agent shall be distributed immediately as follows: (a) Pay to
said principal the invoice value of vehicle sold; (b)
reimburse himself for any taxes, insurance or freight paid
out by him; (c) remainder of proceeds to be retained and
accepted by him as and for his compensation and in full
recompense for services, charges and expenses of every kind.
To this end all vehicles shall be sold and retailed at a
price above invoice value sufficient to confer aforesaid
compensation and expenses of said agent in connection with
said vehicles.
(4) A written report shall be made by said agent to said
principal on the first of each month,
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