Friedenwald Co. v. Warren

• Decision Date: 15 May 1907
• Citation: 81 N.E. 207,195 Mass. 432
• Parties: FRIEDENWALD CO. v. WARREN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 432

81 N.E. 207

FRIEDENWALD CO. v. WARREN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1907

COUNSEL

Brandeis, Dunbar & Nutter, George R. Nutter, and J. Butler Studley, for plaintiff.

Williams & Halloran and G. S. MacFarland, for defendant.

OPINION

SHELDON J.

1. The court had a right in the exercise of its discretion to refuse to allow the defendant to file his proposed amendment, and no exception lies to the exercise of that discretion. Hurley v. Donovan, 182 Mass. 64, 71, 64 N.E. 685; Graef v Bernard, 162 Mass. 300, 38 N.E. 503; Smith v Whiting, 100 Mass. 122.

2. The plaintiff is a foreign corporation. It is provided in substance by our statutes that foreign corporations before doing business in this commonwealth shall appoint the commissioner of corporations to be their attorney for the service of process, shall file with him copies of their charters and by-laws and certain certificates, and shall annually, within a certain fixed period, file with the Secretary of the commonwealth a certificate as to their financial condition; and that a failure to comply with these requirements 'shall not affect the validity of any contract made with such corporation; but no action shall be maintained or recovery had in any of the courts of this commonwealth by any such foreign corporation so long as it fails to comply with' these requirements. St. 1903, pp. 443, 444, 447, c. 437, §§ 58, 60, 66. The defendant offered to show that this corporation had a usual place of business and was doing business in this commonwealth, but had not complied with these requirements, and asked the court to rule that in that event the plaintiff could not recover, and that the burden was on the plaintiff to prove either that at the commencement of the action it was not transacting business in this commonwealth or that it had complied with the requirements of the statute. The court excluded the evidence as incompetent under the pleadings, refused to make the rulings requested, and the other facts not being in dispute ordered a verdict for the plaintiff.

The defendant contends that the burden was upon the plaintiff to show its right to maintain the action, and that all the facts necessary to be proved for this purpose were put in issue by his general denial; and that may be granted. Hill v. Crompton, 119 Mass. 376; Cape Ann National Bank v. Burns, 129 Mass. 596. But this means only that a general denial puts in issue those facts which the plaintiff must aver and prove to establish a prima facie case. Amsinck v. American Ins. Co., 129 Mass. 185, 188, and cases cited. It never has been held that a plaintiff must deny or disprove matter merely in abatement, not going to the jurisdiction of the court, whether this would call for a positive or a negative averment. See Lincoln v. Taunton Copper Co., 11 Cush. 440, 441; Sewall v. Lee, 9 Mass. 363; Ainslie v. Martin, 9 Mass. 454.

The statute does not forbid foreign corporations which have not complied with its requirements from making contracts in this state, or declare such contracts invalid; on the contrary it expressly recognizes their validity, but provides that 'no action shall be maintained or recovery had in any of the courts of the commonwealth by any such foreign corporation,' so long as it fails of such compliance. St. 1903, p. 444, c. 437, § 60. This implies a temporary disability merely, like that of alien enemy at common law or any other personal disability. Hutchinson v. Brock, 11 Mass. 119; Jaha v. Belleg, 105 Mass. 208. This is different from the statutes which were considered in Jones v. Smith, 3 Gray, 500, Washington County Ins. Co. v. Dawes, 6 Gray, 376, 379, and Reliance Ins. Co. v. Sawyer, 160 Mass. 413, 36 N.E. 59; and the decisions in those cases have no bearing here. Accordingly it has been held in Indiana and West Virginia that somewhat similar statutory provisions can be taken advantage of only by answer in abatement as distinguished from an answer in bar. Singer Manuf. Co. v. Effinger, 79 Ind. 264; Daly v. National Life Ins. Co., 64 Ind. 1; Singer Manuf. Co. v. Brown, 64 Ind. 548; Walter A. Wood Co. v. Caldwell, 54 Ind. 270, 23 Am. Rep. 641; Tennis Brothers Co. v. Wetzel & Tyler Railway (C. C.) 140 F. 193, same case on appeal 145 F. 458, 75 C. C. A. 266. It was of course too late in this case to file an answer or to set up matter in abatement after issue had been joined and a trial begun on the merits. Craig Silver Co. v. Smith, 163 Mass. 262, 268, 39 N.E. 1116.

Apart however, from any question of pleading, all the decisions in other states, so far as they have been brought to our attention, agree that compliance with the terms of such statutes as are here in question need neither be averred nor in the first instance proved by a foreign corporation. Nickels v. People's Building Association, 93 Va. 380, 25 S.E. 8; Sprague v. Cutter & Savidge Lumber Co., 106 Ind. 242, 6 N.E. 335; Langworthy v. Garding, 74 Minn. 325, 77 N.W. 207; Hanson v. Lindstrom (N. D., July 9, 1906) 108 N.W. 798; Parlin-Orendorf Co. v. Hord, 78 Mo.App. 279...