Hammond Beep & Provision Co. v. Best

• Decision Date: 18 April 1898
• Citation: 91 Me. 431,40 A. 338
• Parties: HAMMOND BEEP & PROVISION CO. v. BEST.
• Court: Maine Supreme Court

40 A. 338

91 Me. 431

HAMMOND BEEP & PROVISION CO.

v. BEST.

Supreme Judicial Court of Maine.

April 18, 1898.

(Official.)

Agreed statement from superior court, Cumberland county.

Action by the Hammond Beef & Provision Company against Martin W. Best in assumpsit to recover for goods sold and delivered. Plaintiff has judgment.

This was an action of assumpsit to recover for goods sold and delivered by the plaintiff to the defendant, and was returnable to the superior court for Cumberland county, April term, 1897. The parties agreed to the following statement of facts:

"Hammond Beef and Provision Company, the plaintiff, is a legally organized corporation under the laws of the state of Illinois, being organized and created under and in accordance with the provisions of 'An act concerning corporations,' approved April 18, 1872, and in force July 1, 1872. and all acts amendatory thereof. The location of the principal office of said corporation is in Chicago, in the county of Cook and state of Illinois. Its capital stock is twenty thousand dollars. The object for which it is formed is dealing in meats, provisions, and other merchandise. The date of its organization is May 3, 1895. Its duration is twenty-five years.

"Said corporation has transacted business In Portland, in the county of Cumberland and state of Maine, from the date of its organization to the date of the writ in this case, and has had a store or place of business in said Portland during said time where it has transacted and conducted business as aforesaid by different agents or managers. Since May 26, 1896, it has transacted business by its agent or manager, Albert C. Bertch, who is its present agent. Said corporation had paid, prior to the time of the sale and delivery of the goods sued for, one tax to the city of Portland, to wit, in the year 1896, assessed April 1st, of that year, on an assessed valuation of three thousand two hundred dollars personal property. The rental of the store in which its business is transacted in said Portland is $177.51 per month. The volume of its business in said Portland has been about one hundred and fifty thousand dollars a year during the time it has done business in said Portland.

"The defendant, Martin W. Best, an inhabitant of this state, and resident in Deering. in said county of Cumberland, purchased of the plaintiff corporation, in September and October, 1896, at its said place of business in said Portland, goods amounting in value to three hundred and fifty dollars, and was legally Indebted therefor on the 7th day of November, A. D. 1896. and said goods have never been paid for. On said 7th day of November, A. D. 1896, said Best, being then an inhabitant of this state and residing in said county, was legally adjudged an insolvent debtor by the insolvency court of said county of Cumberland, as appears by the records thereof, of said court. On the 7th day of December, 1896, said defendant, being then such resident and inhabitant, was granted by said court a discharge under the provisions of section 62 of chapter 70 of the Revised Statutes of Maine, and acts amendatory thereof and additional thereto, from all his debts and liabilities contracted prior to the commencement of his insolvency proceedings and named in the schedule annexed to his affidavit filed in said court, as appears by the record of said court. His said debt to the plaintiff corporation was among those named in said schedule.

"Said plaintiff corporation had due and legal notice of said insolvency proceedings, and took no part in said proceedings, and refused so to do. The defendant was, on the day of the date of the plaintiff's writ, and still is, an inhabitant of this state.

"The plaintiff existed as a corporation as aforesaid at the time of sale and delivery of the goods sued for, and ever since, and did, and is still doing, business as aforesaid by its agent, having a place of business in Portland, in this state."

Clarence Hale and A. F. Belcher, for plaintiff.

Clarence W. Peabody, for defendant.

PETERS, C. J. The plaintiff is a corporation created under the laws of the state of Illinois, having its home office in Chicago. Its business is dealing in meats, provisions, and other similar merchandise. The corporation ever since its creation has hired a store in Portland, where it has transacted a volume of business in its line of about $150,000 a year, employing as its agents or managers persons who are residents of this state. The corporation was assessed on April 1, 1896, on considerable personal property in its possession In Portland. The defendant, a citizen of this state, in September and October, 1896, bought of the plaintiff the bill of goods sued for in this action, and in November afterwards went into insolvency, receiving his discharge regularly in December of the same year. He named the plaintiff's account in his schedule of debts due from him, and the corporation was served with all the notices usual in proceedings of insolvency, but took no notice of them, and has neither proved its claim nor accepted a dividend on it.

The defendant concedes that if the plaintiff were a natural person instead of a corporation, and in the same condition that the corporation is, his discharge in insolvency could not be successfully pleaded in discharge of the debt. Pullen v. Hillman, 84 Me. 129, 24 Atl. 795. But it is contended that the same rule that would be applied to an individual creditor living in a state other than our own should not apply where the creditor is a foreign corporation occupying a store and doing business in this state. We do not see that in principle there is any force in such a distinction. Creditors without any corporate authority, who have their residence out of the state, may hire and occupy stores and sell merchandise within the state, and their debts contracted here not be affected by their debtor's insolvency, and why may not a foreign corporation just as well have the same immunity?

The defense endeavors to set up, as the justification for a difference between the rights of the two classes of creditors,— creditors incorporated and those not incorporated,—a provision of Rev. St. c. 81, § 19, which reads as follows: "And in all suits and proceedings at law or in equity against any foreign or alien company or corporation established by the laws of any other state or country, and having a place of business within this state or doing business herein, service of the writ, bill, petition, or other process is sufficient, if made by leaving an attested copy thereof with the president. clerk, cashier, treasurer, director, agent, or attorney of such company or corporation, or by leaving such copy at the office or place of business of such company or corporation, within this...