Boggs v. The O. S. Kelly Manufacturing Company

• Decision Date: 08 June 1907
• Docket Number: 14,929
• Citation: 76 Kan. 9,90 P. 765
• Parties: WILLIAM E. BOGGS v. THE O. S. KELLY MANUFACTURING COMPANY
• Court: Kansas Supreme Court

90 P. 765

76 Kan. 9

WILLIAM E. BOGGS v. THE O. S. KELLY MANUFACTURING COMPANY

No. 14,929

Supreme Court of Kansas

June 8, 1907

Decided January, 1907.

Error from Saline district court; ROLLIN R. REES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FOREIGN CORPORATIONS--Parties. A foreign corporation which at one time did business in this state, and has never complied with the requirements imposed by the statute in such cases (Gen. Stat. 1901, § 1283), may, after it has ceased to do such business, maintain an action upon a note taken by it while it was so engaged.

2. CHATTEL MORTGAGES--Exempt Personalty--Purchase-price--Signature of Wife. The statutory requirement that a mortgage of exempt personal property must be executed jointly by the husband and wife when that relation exists (Gen. Stat. 1901 § 4255) has no application to a mortgage given for a part of the purchase-price of the mortgaged property at the time of its sale by the mortgagee to the mortgagor.

Ritchie & Abel, for plaintiff in error.

Z. C. Millikin, for defendant in error.

OPINION

MASON, J.:

The O. S. Kelly Manufacturing Company, a foreign corporation, brought a replevin action against William E. Boggs to recover the possession of personal property upon which it held a chattel mortgage given to it by Boggs securing a note between the same parties. The plaintiff recovered, and the defendant prosecutes error.

At the time the note and mortgage were executed the plaintiff was engaged in transactions of a character that may be assumed to have brought it within the requirements of the statute with respect to foreign corporations doing business in this state. (Gen. Stat. 1901, § 1283.) It has never complied with any of such requirements. Before the action was brought it ceased to do any business in Kansas, except that it continued to attempt to collect notes and accounts which it already held. The property covered by the mortgage was exempt from seizure upon execution, or may be so considered. At the time the instrument was executed Boggs was a married man, and his wife did not sign it. It was given, however, for a part of the purchase-price of the property at the time of its sale by the company to Boggs. The questions to be decided are: (1) Could the plaintiff under these circumstances maintain an action to enforce the note and mortgage? And (2) did the fact that the mortgage was for purchase-money dispense with the necessity which otherwise existed for the wife's signature?

A contract made by a foreign corporation while it is engaged in business in this state is not tainted and rendered unenforceable by the fact that the statute has not been complied with. (The State v. Book Co., 69 Kan. 1 76 P. 411, 1 L. R. A., n. s., 167.) When a foreign corporation is precluded from bringing an action by reason of its non-compliance with the law it is because of the personal disability with which it is burdened at the time. If it assigns the claim its incapacity will not prevent the assignee from suing. (Thresher Co. v. Riggs, 75 Kan. 518, 89 P. 921.) If it complies with the law its competency as a plaintiff is restored, even if such step is taken after an action has been begun. (Hamilton v. Reeves & Co., 69 Kan. 844, 76 P. 418.) When it ceases to do business...