Gholson v. Wickwire Spencer Sales Corporation

• Decision Date: 15 December 1933
• Docket Number: No. 1188.,1188.
• Citation: 66 S.W.2d 814
• Parties: GHOLSON et al. v. WICKWIRE SPENCER SALES CORPORATION.
• Court: Texas Court of Appeals

66 S.W.2d 814

GHOLSON et al. v. WICKWIRE SPENCER SALES CORPORATION.

No. 1188.

Court of Civil Appeals of Texas. Eastland.

December 15, 1933.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Suit by the Wickwire Spencer Sales Corporation against John D. Gholson and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

L. R. Pearson, of Ranger, for appellants.

Cox & Hayden, of Abilene, for appellee.

FUNDERBURK, Justice.

Wickwire Spencer Sales Corporation, alleging itself to be "a private corporation, duly incorporated under the laws of the State of Oklahoma, with a permit to do business in the State of Texas, and doing an interstate business," brought this suit to recover of Jno. D. Gholson and R. A. Disney upon a promissory note for the principal sum of $3,088.17. The defendants pleaded a general demurrer and general denial. Upon the evidence of the note only, the court gave judgment for the plaintiff.

The defendants, having appealed, present for our determination the question of whether or not it was necessary for plaintiff, in order to support the judgment, to prove its allegation that it had "a permit to do business in the State of Texas." If it was necessary to make such proof, then the allegation was necessary. If the allegation was unnecessary, it may be treated as surplusage. Oklahoma Tool & Supply Co. v. Daniels (Tex. Com. App.) 290 S. W. 727, 728; Barcus v. J. I. Case Threshing Mach. Co. (Tex. Civ. App.) 197 S. W. 478. From this it would seem to follow that the question at issue may be determined by first deciding whether said allegation was necessary. Plaintiff's petition also alleged that plaintiff was "doing an interstate business." If plaintiff was only doing an interstate business, no permit was necessary. Miller v. Goodman, 91 Tex. 41, 40 S. W. 718; Allen v. Tyson-Jones Buggy Co., 91 Tex. 22, 40 S. W. 393, 714; Oklahoma Tool & Supply Co. v. Daniels, supra. Of course, if no permit was required, it was not necessary to allege or prove a permit. It was not alleged in plaintiff's petition that it was doing any business in the state of Texas, nor that it had a general or special office in the state. No fact was alleged from which it would be implied that plaintiff was doing business in the state, unless it was the allegation that it had a permit to do so. A foreign corporation may have a permit to do business in a state and yet never transact any business therein. The act of procuring a permit would, at most, show an intention at the time to do so in the future. We think we are bound to know that such an intention could be abandoned before any business in the state was ever transacted. Hence it seems to us the fact of the actual transaction of business cannot be implied merely from a once manifested intention to do so.

We think it may be said to be a proposition fully supported by the decisions in this state that, if a foreign corporation, denominating itself as such, brings a suit in this state, and in the statement of its cause of action alleges no fact to show, either expressly or impliedly, that such cause of action arose out of the transaction of business in the state (other than interstate business), it is not necessary to allege a permit to do business in the state. Oklahoma Tool & Supply Co. v. Daniels, supra; Elliott Electric Co. v. Clevenger (Tex. Civ. App.) 300 S. W. 91; Barcus v. J. I. Case Threshing Mach. Co., supra; Mansur & Tebbetts Implement Co. v. Beer, 19 Tex. Civ. App. 311, 45 S. W. 972; Blackwell-Wielandy Book & Stationery Co. v. Perry (Tex. Civ. App.) 174 S. W. 935; Studebaker Harness Co. v. Gerlach Mercantile Co. (Tex. Civ. App.) 192 S. W. 545; Huff v. Kinloch...