Commercial Bank of Vancouver v. Sherman

• Decision Date: 10 February 1896
• Citation: 28 Or. 573,43 P. 658
• Parties: COMMERCIAL BANK OF VANCOUVER v. SHERMAN.
• Court: Oregon Supreme Court

43 P. 658

28 Or. 573

COMMERCIAL BANK OF VANCOUVER v. SHERMAN.

Supreme Court of Oregon

February 10, 1896

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by the Commercial Bank of Vancouver against D.F. Sherman. Judgment for plaintiff. Defendant appeals. Affirmed.

Chas. H. Carey, for appellant.

Geo. H Williams, for respondent.

BEAN C.J.

This is an action against the defendant, as indorser of a promissory note. The facts are that on June 27, 1891, at Portland, Or., J.L. Lewis and others made, executed, and delivered to the defendant their negotiable promissory note for $9,204, and that in August, 1891, the plaintiff, a banking corporation organized under the laws of the state of Washington, and doing business therein, through its authorized agent, purchased the note of the defendant at Portland, and it was at the latter place sold, indorsed, and delivered by defendant to plaintiff, and, not being fully paid at maturity, this action was commenced to recover the unpaid balance. The defense is that, the note having been sold and transferred to the plaintiff within this state, no action can be maintained against the indorser, because the plaintiff corporation had not, at the time of making the contract and purchase of the note, complied with section 3276, Hill's Ann.Laws, which provides that a foreign banking corporation, "before transacting business in this state, must duly execute and acknowledge a power of attorney, and cause the same to be recorded in the county clerk's office, of each county where it has a resident agent, which power of attorney, so long as such company shall have places of business in the state, shall be irrevocable, except by the substitution of another qualified person for the one mentioned therein as attorney for such company." It must be conceded that the contracts of any of the foreign corporations named in the title of the act of 1864, of which the section referred to is a part, carrying on business here without first having executed and caused to be recorded a power of attorney, as required by the statute, are void, and no action can be maintained thereon by the corporation. Bank v. Page, 6 Or. 431; Hacheny v. Leary, 12 Or. 40, 7 P. 329; In re Comstock, 3 Sawy. 218 Fed.Cas. No. 3,078; Semple v. Bank, 5 Sawy. 88 Fed.Cas. No. 12,659. But the record shows that, at the time the plaintiff made the contract upon which this action is based, it was not carrying on, or proposing to carry on, its corporate business in this state; and, so far as appears, the purchase of the note in question was the only business ever done or contemplated by it here. The single inquiry presented by this record, therefore, is whether a foreign banking corporation purchasing a promissory note in this state, and with no purpose of doing any other act here, is "transacting business" in the state, within the meaning of the statute. It seems to us this question must be answered in the negative. In our opinion, the statute, when reasonably construed, was intended to prohibit certain foreign corporations coming into this state for the purpose of transacting their ordinary corporate business without first appointing some resident agent, upon whom service of summons could be had in case of...