McCanna & Fraser Co. v. Citizens' Trust & Surety Co. of Philadelphia

• Decision Date: 23 October 1896
• Docket Number: 33.
• Citation: 76 F. 420
• Parties: McCANNA & FRASER CO. v. CITIZENS' TRUST & SURETY CO. OF PHILADELPHIA.
• Court: U.S. Court of Appeals — Third Circuit

76 F. 420

McCANNA & FRASER CO. v. CITIZENS' TRUST & SURETY CO. OF PHILADELPHIA.

No. 33.

United States Court of Appeals, Third Circuit.

October 23, 1896

John W Shortledge, for plaintiff in error.

David J. Myers, Jr., for defendant in error.

Before DALLAS, Circuit Judge, and BUTLER and WALES, District Judges.

BUTLER District Judge.

The suit is on a surety bond given by the defendant to the plaintiff-- the latter being a corporation of Wisconsin. The bond recites that the plaintiff has appointed S. Ridgway Kennedy its manager, and that he is to enter into its service accordingly in Philadelphia, and then stipulates that the defendant will reimburse the plaintiff to the extent of $7,000 for such pecuniary loss, if any, as may be sustained by said employer by reason of the dishonesty of the employe amounting to embezzlement of larceny, in connection with his duty as manager of the plaintiff's business.

An act of assembly of the commonwealth of Pennsylvania, approved April 22, 1874, requires every foreign corporation undertaking to do business in the state of Pennsylvania to establish an office here, and to appoint an agent for the transaction of business; and the second section declares that it shall not be lawful for any such corporation to do any business in this commonwealth until it shall have filed in the office of the secretary of this commonwealth a statement under the seal of the corporation and signed by the president and secretary thereof showing the title and object of the corporation, the location of its office or offices, and the name or names of its agent or agents, etc.

The third section declares that any person or persons, agent or agents, officer or employe of such foreign corporation who shall transact any business in this commonwealth without compliance with the provisions of the act shall be guilty of a misdemeanor, and on conviction thereof shall be punished by imprisonment, etc.

The plaintiff did not comply with the second section, and consequently its business transacted here was unlawful. The construction and effect of the statute have several times been considered by the supreme court of the state (whose decision in this regard are binding on us) and that court has held that the transaction of business in Pennsylvania by a foreign corporation, under such circumstances, and all contracts pertaining to it, are unlawful. In Lasher v Stimson, 145 Pa.St. 30 (23 A. 552), it...