Surveyors, Inc. v. Berger Brothrers Co.

• Decision Date: 10 March 1941
• Docket Number: 60078
• Citation: 9 Conn.Supp. 175
• Court: Connecticut Superior Court
• Parties: SURVEYORS, INC. v. BERGER BROTHERS CO.

__ A. __

9 Conn.Supp. 175

SURVEYORS, INC. v. BERGER BROTHERS CO.

No. 60078

Superior Court of Connecticut.

March 10, 1941

A foreign corporation did not transact business in this State so as to become amenable to the statutes governing foreign corporations, when it solicited a contract for the rendition of advisory services with respect to insurance, or when, by its representative, it inspected a plant, examined policies and gathered other information in this State necessary for the formulation of its report and recommendations (Gen. Stat [1930] §§3488, 3491). The plaintiff, a foreign corporation sued to recover compensation for services rendered to a domestic corporation under a written contract signed by the plaintiff in a foreign state and forwarded by mail to the defendant in this State, where it was signed by the defendant and returned by mail to the plaintiff. The plaintiff sent its representative to this State to inspect the defendant's plant, to examine the defendant's policies of insurance and to interview the defendant's officers and others having material information. The information acquired was taken to the plaintiff's office in a foreign state and there analyzed and the plaintiff's report and recommendations sent to the defendant in this State.

The term " transacting business", as used in our statutes, contemplates that business which the foreign corporation was organized to carry on, and not some business incidental thereto, as the solicitation and procuring of a contract to perform that business for which the corporation was organized.

In determining whether a foreign corporation is doing business in a state by entering into contracts with residents thereof it is not so much the place of contract that is controlling as the place of performance and the things to be done in the State pursuant to the agreement.

The mere search by the plaintiff in this State for information to be used in formulating its report and recommendations did not constitute the transaction of business.

Curtis, Brinckerhoff & Barrett, of Stamford, for the Plaintiff.

Wiggin & Dana, of New Haven, specially for the Defendant.

Memorandum of decision on defendant's plea in abatement and to the jurisdiction.

BALDWIN, J.

The plaintiff, a foreign corporation, organized under the laws of the State of New York and located in the City and State of New York, brought this action to recover compensation for services rendered by it to the defendant, a corporation organized under the laws of this State and located and doing business at New Haven in this State, under a written contract signed by the plaintiff in New York and forwarded by it by mail to the defendant at New Haven where it was signed by the defendant and returned by mail to the plaintiff in New York. The defendant has pleaded in abatement upon the ground that the plaintiff, a foreign corporation, has never complied with the provisions of sections 3488, 3489 and 3491 of the General Statutes, Revision of 1930.

The pertinent provisions of section 3488 are as follows: " Each foreign corporation,... shall, before transacting business in this state, file in the office of the secretary of the state a certified copy of its charter or certificate of incorporation, together with" certain other information provided for in the statute. Section 3489 provides, in so far as material here to note, as follows: " Each foreign corporation with an office or place of business in this state,... shall, before doing business in this state, appoint in writing the secretary of the state and his successors in office to be its attorney upon whom all process,... may be served", etc.

Section 3491 provides that " any person, or any agent, officer or employee of any foreign corporation, who shall transact any business within this state for any such foreign corporation, without the provisions of sections 3488 and 3489 having been complied with", shall be subject to a penalty, etc. This, therefore, is a penal statute and must be strictly construed. Section 3488 applies to any foreign corporation transacting business in this State, while section 3489 requires that each " foreign corporation with an office or place of business in this state,... shall, before doing business in this state, appoint", etc.

The plaintiff had no office or place of business in this State. It had no telephone listing and maintained no agents, solicitors or employees in this State. It would appear, therefore, that section 3489 does not apply to this corporation.

Upon the contract being entered into, the plaintiff sent its representative to New Haven to inspect the defendant's plant and to examine its policies of insurance and to interview its officers and any others having material information for the purpose of acquiring data and information concerning risks to which it might be liable resulting from its ownership of property, employment of help and the conduct of its business and from any other cause subjecting it to any risk. This data and information was taken to plaintiff's New York office. This data and information thus acquired was there analyzed by the plaintiff, its risks determined, appropriate insurance coverage and cost thereof considered and a report and recommendations thereon sent to the defendant at New Haven, for which service it made a charge, under the terms of the contract, which charge was based upon savings it showed the defendant it could secure by the adoption of its recommendations which the defendant accepted and adopted.

Defendant claims that the solicitation of the contract and the inspection of its plant in New Haven and the examination of its insurance...