Strasbaugh v. Steward Sanitary Can Co. of Delaware, Maryland, and Virginia

• Decision Date: 26 January 1916
• Docket Number: 52.
• Citation: 96 A. 863,127 Md. 632
• Parties: STRASBAUGH et al. v. STEWARD SANITARY CAN CO. OF DELAWARE, MARYLAND, AND VIRGINIA.
• Court: Maryland Court of Appeals

96 A. 863

127 Md. 632

STRASBAUGH et al. v. STEWARD SANITARY CAN CO. OF DELAWARE, MARYLAND, AND VIRGINIA.

No. 52.

Court of Appeals of Maryland

January 26, 1916

Appeal from Baltimore Court of Common Pleas; Walter I. Dawkins Judge.

"To be officially reported."

Action by the Steward Sanitary Can Company of Delaware, Maryland and Virginia against Harry P. Strasbaugh and William Silver partners trading as Strasbaugh, Silver & Co. Judgment for plaintiff, and defendants appeal. Reversed and new trial awarded.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

D. G. McIntosh, of Towson, and S. A. Williams, of Bel Air (Philip H. Close, of Bel Air, on the brief), for appellants.

William E. Bonn, of Baltimore, and Thomas H. Robinson, of Bel Air (Henry A. Whitaker, of Bel Air, on the brief), for appellee.

PATTISON J.

In this case an action was brought by the appellee against the appellants in the circuit court for Harford county, on the 19th day of May, 1908, and was, on the 13th day of October, 1913, removed from that court to the circuit court for Baltimore county, and was again removed on the 13th day of April, 1914, to the court of common pleas of Baltimore city, where it was tried before a jury and a verdict was rendered in favor of the plaintiff for the sum of $1,100, upon which a judgment was thereafter entered. It is from that judgment that this appeal is taken.

The first declaration appearing in the record is the amended declaration filed August 9, 1912. This contained the seven common counts and two special counts. These special counts read as follows:

"(8) For that, whereas, the said Leonard Steward and John A. Steward, partners trading as L. & J. A. Steward, were, on or about the 25th of August, in the year 1906, engaged in the manufacture and sale of tin cans for the packing of fruits and vegetables, and the defendants were engaged in such business as made convenient and necessary the purchase by them of such cans, and the defendants, on or about the day and date aforesaid, purchased from said Leonard and John A. Steward, partners, trading as L. & J. A. Steward, 43,650 inch tin cans at a cost of $20 for each and every thousand, and the said Stewards bargained, sold, and delivered said cans to said defendants; and, whereas, subsequently thereto, to wit, on or about the -- day of --, in the year --, the said Leonard Steward and John A. Steward, partners as aforesaid, bargained, sold, set over and assigned all their property of every description in the states of Delaware, Maryland, and Virginia, including chattels, choses in action, book accounts, business and good will to the plaintiff, which then and there became the owner thereof, and although due demand has been made for the payment of the same, the defendants have failed so to do; and (9) for that whereas the said Leonard and John A. Steward, partners trading as L. & J. A. Steward, were, on or about the 25th of August, in the year 1906, engaged in the manufacture and sale of certain sanitary capping machines, which were used for the purpose of sealing tin cans used for the packing fruits and vegetables, and the defendants were engaged in such business as made it convenient and necessary for them to purchase or hire such capping machines, and the said defendants, on or about the day and year aforesaid, hired from said Leonard and John A. Steward, partners, trading as L. & J. A. Steward, one of said machines at a rental of $75 for the packing season of 1906, and the said Stewards delivered said machine to said defendants for that purpose, and whereas, subsequently thereto, to wit, on or about the -- day of --, in the year --, the said Leonard Steward and John A. Steward, partners as aforesaid, bargained, sold, set over, and assigned all their property of every description in the state of Delaware, Maryland, and Virginia, including choses in action, book accounts, business, and good will, to the plaintiff, including their charge for said rental against the said defendants, which charge then and there became the property of the plaintiff, and although demand has been made for the payment of the same, the defendants have failed so to do."

Upon demand being made, the plaintiff filed the following bill of particulars:

"Shipped August 25, 1906.

Harry P. Strasbaugh and William Silver, Formerly Partners, Trading as Strasbaugh, Silver & Company, to The Steward Sanitary Can Company of Delaware, Maryland, and Virginia, Assignee of L. & J. A. Steward, Dr.

To 43650 five inch (5 in. x 4"1/4 in.) sanitary cans at $20.00 per

thousand (purchased August 25th, 1906) ................................. $873 To hire of one automatic feed double seamer sanitary capping machine

for season of 1906 .................................................... 75 00

(Both shipped by L. & J. A. Steward on order and credit of Strasbaugh, Silver & Company, Townsend, Delaware.)

To interest on same from date of delivery."

To the above-amended declaration the defendants pleaded: "(1) That there is no such corporation as the Steward Sanitary Can Company of Delaware, Maryland, and Virginia;" and (2) that the defendants never promised as alleged; and (3) never were indebted as alleged.

The plaintiff joined issue on the second and third of these pleas, and traversed the first, and thereafter the defendants filed a fourth plea, alleging, in substance, that the plaintiff had not complied with section 93, art. 23, of the Code of 1912. To this plea a replication was entered short upon the docket, and issue joined thereon. In the course of the trial the plaintiff offered in evidence a copy of the certificate of incorporation, or charter, granted to the plaintiff under the laws of New Jersey, certified to by the secretary of state of the state of New Jersey, which was admitted without objection. The plaintiff next offered the following certificate:

"The State of Maryland, Office of the Secretary of State. I, Robert P. Graham, secretary of state of the state of Maryland, do hereby certify, that the Steward Sanitary Can Company of Delaware, Maryland & Virginia, a corporation, created under the laws of the state of New Jersey, has complied with the requirements of section 68 of article 23 of the Code of Public General Laws of Maryland, by filing in this office a duly certified copy of its charter or certificate of incorporation; a certificate, signed by its president, treasurer or a majority of its board of directors, showing its corporate name; the names and addresses of its president, treasurer, secretary and the members of its board of directors; its principal office in this state and in the state of its incorporation; the amount of its capital stock authorized and issued; the number and par value of its shares of stock and the amount paid in thereon; the names and addresses of its shareholders in this state and number of shares of stock held by each; and the amount of capital employed in this state. That the said corporation has appointed Mr. Henry A. Whitaker, of Bel Air, Maryland, as its agent to reside in the state of Maryland, upon whom legal process against the corporation may be served, and has certified its willingness that so long as any liability remains outstanding against it in this state, the authority of such agent shall continue until a substitute is appointed and certified to the secretary of state; and has paid to the state of Maryland the statutory registration fee of twenty-five dollars.

I, therefore, hereby further certify that the said corporation is entitled to transact business in the state of Maryland.

In testimony whereof, I hereunto set my hand and caused to be hereto affixed my official seal, at Annapolis, this 5th day of March, 1915.

[Seal] Robert P. Graham,

Secretary of State."

The defendants objected to the admission of this certificate in evidence, and, the objection being overruled, an exception was noted to the ruling of the court thereon.

Section 93 of article 23 of the Code of Public General Laws of 1912, or section 68 of said article 23 of the Code of 1904, after the passage of the Acts of 1898, c. 270, of this state provides that:

"Every foreign corporation which has a usual office or place of business in this state, *** shall, before doing business herein, file with the secretary of state, who shall record the same, (1) a certified copy of its charter or certificate of incorporation; (2) a certificate to be renewed annually before the first day of April in every year, subscribed and sworn to by its president or treasurer, or a majority of its board of directors and accompanied by the annual fee of one dollar for recording such renewal, showing (a) the corporate name; (b) the names and addresses of its president, treasurer, secretary and the members of its board of directors; (c) its principal office in this state and in the state of incorporation; (d) the amount of its capital stock authorized and issued, the number and par value of the shares and the amount paid in thereon, and the names and addresses of its shareholders in this state, and the number of shares held by each, and the amount of its capital employed in this state; (e) the name and address of its agent, resident in this state, and authorized to accept service of process upon it; and (f) its willingness that so long as any liability remains outstanding against it in this state, the authority of such agent shall continue until a substitute is appointed and certified to the secretary of state. At the time of filing the original papers required by this section every such foreign corporation shall pay to the secretary of state for the use of the state, a fee of twenty-five dollars, upon receipt of which he shall issue to it the certificate setting

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