Bryan v. S. F. Bowser & Co.

• Citation: 209 S.W. 189
• Decision Date: 08 February 1919
• Docket Number: (No. 8084.)
• Court: Court of Appeals of Texas
• Parties: BRYAN v. S. F. BOWSER & CO.

Page 189

209 S.W. 189

BRYAN v. S. F. BOWSER & CO.

(No. 8084.)

Court of Civil Appeals of Texas. Dallas.

February 8, 1919.

Appeal from Dallas County Court; T. A. Work, Judge.

Suit by S. F. Bowser & Co., a corporation, against E. P. Bryan. From judgment for plaintiff, defendant appeals. Reversed, and cause dismissed.

E. P. Bryan and Claude M. McCallum, both of Dallas, for appellant.

Burgess, Burgess, Christman & Brundidge, of Dallas, for appellee.

TALBOT, J.

This suit originated in justice court of precinct No. 1 in and for Dallas county, Tex., and appellee recovered judgment in that court. Appellant duly perfected his appeal from this judgment to the county court of Dallas county at law, Dallas county, Tex.

The suit was brought by appellee against appellant to recover the sum of $176, balance alleged to be due upon a written contract dated Dallas, Tex., March 15, 1915, for the sale and installation of a gasoline tank, pump, and accessories, for interest and attorney's fees, and for a foreclosure of a chattel mortgage. The written contract upon which the suit was based was attached to and made a part of appellee's petition. Appellee, among other things not necessary to be stated for the purposes of this appeal, alleged that its domicile and principal place of business was at Ft. Wayne, in the state of Indiana, and that it was engaged in interstate commerce trading, and that the sale of the said pump covered by the said contract, copy of which is marked Exhibit A, was an interstate commerce transaction, that the plaintiff was not at the time of the making of this contract, nor at any time since February, 1914, engaged in business in the state of Texas, that it has no stock of goods or salesroom in the state of Texas, and that the goods covered by contract herein sued upon were not in the state of Texas at the time said contract was made, but that the said contract was accepted in the state of Indiana and the goods thereafter shipped to the defendant. The appellant, so far as need be stated, pleaded a general denial, and specially that appellee is a foreign corporation and is maintaining an office in Texas, that it has agents in Texas, and that the said order for the pump, tank, and other articles mentioned in appellee's petition was solicited by plaintiff's agent in Texas, and that said pump, tank, etc., were to be installed complete by appellee at Dallas, Tex., and that all the labor and a great deal of the material required for the installation were obtained in Texas, and that under said agreement plaintiff was to install same ready for use at Dallas, Tex. And defendant says that plaintiff was not and at the time of making said contract, and at the time of installation of said machinery, did not have its articles of incorporation on file with the secretary of state, and did not have a permit to do business in the state of Texas.

The case was tried before the court without a jury, and judgment again rendered in favor of appellee, and the appellant perfected an appeal to this court.

There is but one assignment of error, and the sole question to be decided is whether or not the facts and circumstances in evidence, which are practically uncontroverted, show that the appellee transacted business in this state within the meaning and purpose of the provisions of chapter 26, vol. 1, Vernon's Sayles' Texas Civil Statutes, relating to foreign corporations. These provisions of the statute, among other things, provide that any corporation for pecuniary profit, except as therein provided, organized under the laws of any other state, desiring to transact business in this state, or solicit business in this state, or establish a general or special office in this state, shall file with the secretary of state a duly certified copy of its articles of incorporation, and thereupon the secretary of state shall issue to such corporation a permit to transact business in this state; that no such corporation 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, unless at the time such contract was made, or tort committed, the corporation had filed its articles of incorporation, under the provisions of said chapter, in the office of the secretary of state for the purpose of procuring its permit. The facts show that the appellee's cause of action is founded upon a contract with appellant made on the 15th day of March, 1915, and that appellee at that time was, and since has been, a foreign corporation with its domicile and principal place of business at Ft. Wayne, in the state of Indiana, without a permit to transact business in the state of Texas. The contract was entered into between appellant and J. C. White, soliciting sales agent of appellee, at Dallas, Tex., but was not binding until forwarded to and accepted by appellee, S. F. Bowser & Co. at their office in Ft. Wayne, Ind. After its execution...