J. R. Watkins Medical Co. v. Martin
| Citation | 200 S.W. 283,132 Ark. 108 |
| Decision Date | 17 December 1917 |
| Docket Number | 43 |
| Parties | THE J. R. WATKINS MEDICAL COMPANY v. MARTIN |
| Court | Supreme Court of Arkansas |
Appeal from Randolph Circuit Court; J. B. Baker, Judge; reversed.
Judgments reversed and causes remanded.
S. A D. Eaton, for appellant.
1. The contracts sued upon are similar to the one sued upon in 124 Ark. 539.
The appellant had complied with the laws of Arkansas, and this was shown by the certificate of the Secretary of State. It was error, therefore, to submit to the jury this question. 122 Ark. 451, Act No. 313, Acts of 1907.
2. Argue the merits of the cause alleging many errors.
E. G Schoonover, for appellees.
1. The certificate of the Secretary of State was not admissible in evidence. Kirby's Digest, § 3058; 2 Elliott on Ev §§ 1354-5; 1 Tenn. 220; Acts 1907, Act No. 313, Acts 1899, 305, etc. There was no proof that appellant ever complied with the laws of Arkansas.
2. There is no error in the instructions and the verdict is right and sustained by the evidence.
This appeal is from judgments rendered in two consolidated actions at law instituted by appellant to recover amounts alleged to be due for sales of merchandise under written contracts which are identical in form and substance. Each of the purchasers under the alleged contracts were required to furnish guarantors who signed the respective bonds as such. In the action against appellee Martin his guarantors were joined as defendants and the same course was pursued in the action against appellee Nettle. The contract in the Martin case was executed on February 18, 1914, and the contract in the Nettle case was executed on December 1, 1913. On the trial of the cases below there was a verdict for the defendants in both cases.
Appellant is a Minnesota corporation domiciled at the city of Winona in that State, and at the time of the execution of the contracts in each of these cases had not complied with the laws of Arkansas permitting foreign corporations to do business here. The contention of appellant was, and is, that the contracts were for the sale of merchandise and that the sales constituted interstate commerce, which is not subject to the regulations of this State. In other words, that in each instance there was a sale of goods which took place in another State where the contract was lawful and that the shipment of the goods into this State constituted interstate commerce.
The sole issue tendered by the answer in each case so far as related to the principal defendant was that the contract was not for the sale of merchandise, but for the creation of an agency for the sale of merchandise by retail in the State of Arkansas, and that the contract was void because of the fact that appellant had not complied with the laws of this State allowing corporations to do business here. The guarantors also made the defense that there had been changes in the contract without their consent, and during the progress of the trial the court, over appellant's objections, permitted the pleadings to be amended so as to allow the guarantors to interpose the additional defense in one of the cases that they had notified appellant of their withdrawal from the contract as guarantors. During the progress of the trial appellant introduced in evidence a certificate of the Secretary of State bearing date of November 30, 1915, which was prior to the institution of these actions, to the effect that appellant had complied with the laws of this State by filing in the office of the Secretary of State a duly certified copy of its articles of incorporation, a certificate designating an agent upon whom service of summons or other processes might be had in any of the courts of this State, and resolutions of the board of directors, consenting that summons or other process might be had upon said agent, or upon the Secretary of State, and a statement of its assets and liabilities, a statement showing the number of shares of capital stock and the par value of each, the value of property owned and used by said corporation in the State of Arkansas, the proportion of capital stock of the company which is represented or employed in its business in the State, etc., and that said corporation had paid the fees required by law, and in all other things complied with the provisions of the statute.
The court allowed appellant to introduce this certificate over the objections of appellees, but in finally submitting the case to the jury the court gave instructions telling the jury that they must return a verdict for defendants unless they found from a preponderance of the evidence that the laws of this State had been complied with. Other instructions were given, submitting the issues of the withdrawal of the guarantors, but we do not deem it necessary to review that feature of the case, since we have reached the conclusion that the judgment in each case must be reversed on account of the error of the court in its instructions concerning the authority of appellant to do business in this State. The effect of the court's rulings was to first hold that the certificate of the Secretary of State was admissible and later by its instructions to take that evidence away from the jury or weaken its force, because if the certificate was admissible it made a case of undisputed evidence as to the right of appellant to do business here. If the court was correct in its final ruling in the instruction that the authority to do business here had not been established by legal evidence, then there should be no reversal because of the apparent conflict in the rulings of the court in admitting the certificate and in finally instructing the jury, in effect, that the certificate was insufficient to establish the authority to do business. Hightower v. Hightower, 128 Ark. 95, 193 S.W. 518.
We have decided that a contract made by a foreign corporation before complying with the laws of this State is not void, and that where the statutes are complied with before the institution of the action the contract is enforceable. Waxahachie Medicine Co. v. Daly, 122 Ark. 451, 183 S.W 741. Counsel for appellees defend the ruling of the court solely on the ground that the authority of appellant to do business in the State was not properly proved, the contention being that proof of the authority to do business is controlled by the general statute (Kirby's Digest, § 3058), providing for the introduction of certified copies of documents on file in the office of the Secretary of State, or by the terms of the act of May 8, 1899 (Acts 1899, page 305; Kirby's Digest, § 827), which provides that the Secretary of State "shall cause to be issued to said corporation a copy of such charter, or articles of incorporation, or certificate so filed, properly certified under the seal of his office, and a copy of such charter, or articles of incorporation or certificate, certified to by the Secretary...
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...Co., 61 Ark. 1, 31 S.W. 157, 29 L.R.A. 712; Waxahachie Medicine Co. v. Daly, 122 Ark. 451, 183 S.W. 741; J. R. Watkins Medical Co. v. Martin, 132 Ark. 108, 200 S.W. 283, 2 A.L.R. 1230; Ockenfels v. Boyd, 8 Cir., 297 F. 614.1 Thus, whatever question, if any, might be capable of existing as t......
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