Sherman Stubbs Realty & Ins., Inc. v. American Institute of Marketing Systems, Inc.
| Decision Date | 15 May 1968 |
| Docket Number | No. 43548,No. 3,43548,3 |
| Citation | 162 S.E.2d 240,117 Ga.App. 829 |
| Court | Georgia Court of Appeals |
| Parties | SHERMAN STUBBS REALTY & INSURANCE, INC. v. AMERICAN INSTITUTE OF MARKETING SYSTEMS, INC |
Payne, Barlow & Green, William O. Green, Jr., Austell, for appellant.
Lipshutz, Macey, Zusmann & Sikes, John M. Sikes, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
The American Institute of Marketing Systems, Inc., brought an action against Sherman Stubbs Realty & Insurance Company, Inc., in two counts. The first count sought recovery on a promissory note in the amount of $350 plus interest and attorney's fees. Count 2 sought recovery of $636 plus interest based upon breach of contract for failure to purchase certain items which the defendant allegedly had agreed to purchase under the contract. A copy of the note sued upon, a contract, and a notice of attorney's fees were attached to the petition. The petition as amended alleged that the plaintiff corporation was not doing business in the State of Georgia and was not qualified to do business in the State of Georgia. The defendant filed certain general demurrers and special demurrers to the petition as a whole and to the first and second counts separately. The trial judge overruled the general demurrers to the petition as a whole and to Count 1 of the petition and refused to pass upon the other demurrers on the ground that under the Civil Practice Act it was not necessary that the court pass upon the same. The defendant appeals this ruling and enumerated as error the overruling of the general demurrers to the petition as a whole and to Count 1, and also enumerated as error refusal to pass upon the other demurrers, among which was a general demurrer to Count 2 of the petition. The general demurrers argued raised the question of whether or not a foreign corporation which enters itno a contract and does business in this state is precluded from recovery upon such contract because of a failure to comply with Section 1 of the Act approved January 31, 1946 (Ga.L. 1946, p. 687; Code Ann. § 22-1506). Held:
1. Whether we pass on the general demurers as such, or treat them as motions to dismiss for failure to state a claim upon which relief can be granted (see Section 81A-112(b)(6) of the Civil Practice Act (Ga.L.1966, pp. 609, 622)), the result is the same.
The title to the Act approved January 31, 1946 (Ga.L.1946, p. 687) states that it is 'An Act To prescribe certain terms and conditions upon which foreign corporations may do business in this State; to provide for filing of copy of charter thereof with the Secretary of State and the designation of an agent for service of notice and process by such corporation with provisions for service in cases where no agent upon whom service can be made (is) designated; to provide penalties and for other purposes.' Section 1 of that Act (Code Ann. § 22-1506) provides: The Act provides for an express penalty to be imposed upon the foreign corporation coming within the terms of the Act which does not comply therewith. The question is, does a failure to comply prevent the foreign corporations from suing upon the contract resulting from business done in this state. In our opinion it does not. While similar Acts in other states have received varying interpretations, and different results have been reached because of other underlying rules of law in the particular state as applied to the statute (see 20 C.J.S. Corporations § 1847, p. 70; 26 Ga.B.J. 157, 164), we do not think those reaching a different result are controlling here. Acts involving restrictions on trade or common operations, etc., are to be strictly construed. Mayor etc., of City of Savannah v. Hartridge, 8 Ga. 23(5), Felton v. City of Atlanta, 4 Ga.App. 183(1), 61 S.E. 27. This rule, coupled with the rule that in construing statutes expressio unius est exclusio alterius (Bailey v. Lumpkin, 1 Ga. 392, 403), leads us to the conclusion that there...
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