Hampshire Silver Co. v. Hill
| Decision Date | 06 December 1951 |
| Docket Number | No. 12337,12337 |
| Citation | 244 S.W.2d 520 |
| Parties | HAMPSHIRE SILVER CO. v. HILL et al. |
| Court | Texas Court of Appeals |
Ross, Banks & May and E. Burgess Laughlin, all of Houston, for appellant.
S. G. Kolius, Houston, (Bates, Cartwright, Bates & Kolius, of Houston, of counsel), for appellee.
This action was brought in the County Court at law of Harris County by appellant, Hampshire Silver Company, against A. J. Hill, d/b/a A. J. Hill Company, for $450.96, alleged to be due it for goods, wares and merchandise sold and delivered to appellee by appellant in interstate commerce.
Appellee answered by a plea in abatement, exceptions, general denial and a plea referred to by it as a plea in bar of the facts alleged in its plea in abatement.
Upon trial of the case appellee in open court waived its plea in abatement and offered no evidence of the allegations therein contained. The only evidence offered upon the trial was appellant's sworn account which was introduced in evidence without objection.
In the trial before the court without a jury, judgment was rendered in favor of appellee.
The material facts in the case are undisputed. The trial court prepared and caused to be filed its findings-of-fact and conclusions-of-law in which it was found that A. J. Hill was a resident of Harris County; that appellant was a corporation domiciled in the State of New York, and that at the time the suit was instituted it did not have a permit to do business in the State of Texas, as required by Article 1529 of the Revised Civil Statutes. The court found that the suit was a suit on open account and that appellee had in open court waived his plea in abatement; that the appellant had, without objection to its introduction, introduced in evidence the account made the basis of the suit and had rested its case without introducing any evidence to show that the transaction giving rise to the account made the basis of the suit was interstate in character. The court concluded as a matter of law that appellant did not have the power nor right to maintain the suit by reason of the provisions of Article 1536 Revised Civil Statutes, Vernon's Ann.Civ.St. art. 1536, because of its failure to comply with Article 1529 Revised Civil Statutes.
Article 1529 Revised Civil Statutes provided that, 'Any corporation for * * * profit * * *, organized or created under the laws of any other State * * * desiring to transact or solicit business in Texas, or to 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 such official shall issue to such corporation a permit to transact business in this State * * *.'
Article 1536 provides that, 'No such corporation can maintain any suit * * *, in any Court 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 this Chapter. * * *'
Appellant relies for reversal on three Points of Assigned Error, under which it contends that a foreign corporation selling goods in interstate commerce cannot be required by the State to secure a permit or denied the right to sue for purchase price of the goods purchased. It contends that where a foreign corporation's petition does not show any necessity that it have a permit to transact business in Texas and does not show that the transaction was intrastate and where it does not allege any other facts showing the necessity for a permit, the party relying on such facts as a defense has the burden of pleading and proving facts showing a necessity for a permit and that in an action on an open account for merchandise sold a general denial is insufficient to overcome a prima facie case made by plaintiff's account.
The only evidence offered in the trial court was appellant's sworn account, which was introduced in evidence without objection. Appellant's petition does not show and there is no evidence in the record to...
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Roy Mitchell Contracting Co. v. Mueller Co., 7147
...Texas Business Corporation Act, V.A.T.S.; Gholson v. Wickwire Spencer Sales Corp., Tex.Civ.App., 66 S.W.2d 814; Hampshire Silver Co. v. Hill, Tex.Civ.App., 244 S.W.2d 520. In the last cited case above (244 S.W.2d 520, 521), the court 'It is held by the Supreme Court of this State, in the ca......
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...arose were or were not in interstate commerce. Continental Supply Co. v. Hoffman, 135 Tex. 552, 144 S.W.2d 253; Hampshire Silver Co. v. Hill, Tex.Civ.App., 244 S.W.2d 520. 2 Compare what is said on this point as to Mississippi law in Mississippi Wood Preserving Co. v. Rothschild, 5 Cir., 20......
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