McCORMICK
Circuit Judge.
The
defendant in error brought this action against the plaintiffs
in error in the circuit court for the Western district of
Texas. On May 7, 1897, it presented its first amended
original petition, which, by the practice in that state
takes the place of its former pleading. This amendment states
the plaintiff's case as follows:
'Now
comes the plaintiff, J. & G. Meakin, Limited, by its
attorney, and by leave of court files this its first
amended original petition in lieu of its original petition
filed herein on March 16, 1897, and, complaining of Adolph
Wagner, Charles J. Chabot, and George A. Chabot,
defendants, says: The plaintiff is a corporation duly
incorporated under the laws of the United Kingdom of Great
Britain and Ireland, is a citizen of said United Kingdom,
and has its principal office at Hanley, county of Stafford,
England, in said United Kingdom. That the defendants are
citizens of the state of Texas, and reside in the county of
Bexar, city of San Antonio, in the Western district of said
state, and that the defendants were, at the dates
hereinafter mentioned, and still are, partners in the
trade, doing business under the firm name of Wagner &
Chabot. That heretofore, to wit, on the 14th day of
February, 1896, the plaintiff, at said Hanley, England,
made a certain foreign bill of exchange of that date,
directed to the defendants in their firm name, and thereby
requested said defendants to pay to the order of the
plaintiff, six months after said date, the sum of five
hundred and ninety-three pounds, eight shillings, and eight
pence, for value received, and delivered the bill of
exchange to the defendants, who afterwards accepted the
same, payable at San Antonio; by reason whereof the
defendants became liable and promised to pay the plaintiff
the sum of money specified in said bill of exchange,
according to the tenor and effect thereof and their said
acceptance. That afterwards, to wit, on July 15, 1896,
before said bill of exchange became due, the defendants
requested of plaintiff an extension of four months, because
they said collections were poorer than ever before in their
experience, and their cash resources were therefore rather
tight; the defendants promising, if granted said extension,
to pay interest. That the plaintiff granted said extension,
and duly presented said bill of exchange on the 17th day of
December,
1896, for payment, but the defendants refused to pay the
same; whereupon it became necessary to have the same
protested for nonpayment, which the - plaintiff caused to be
done, and paid therefor, and for the notices of protest, four
dollars, whereby the defendants became liable and promised to
pay the plaintiff sand sum of $4. That, to wit, on the 30th
day of May, 1896, the plaintiff, at said Henley, England,
made another foreign bill of exchange, of that date, directed
to the defendants in their firm name, and thereby requested
the defendants to pay to the order of the plaintiff, six
months after said date, the sum of two hundred and forty
pounds and four shillings, for value received, and delivered
said bill of exchange to the defendants, who afterwards
accepted the same, in San Antonio; by reason whereof the
defendants became liable and promised to pay plaintiff the
sum of money specified in said bill of exchange, according to
the tenor and effect thereof and their said acceptance. That
afterwards, to wit, on the 23d of November, 1896, the
plaintiff presented said bill of exchange to the defendants
for payment, but the defendants refused to pay the same;
whereupon it became necessary to have the same protested for
nonpayment, which the plaintiff caused to be done, and paid
therefor, and for the notices of protest, four and one-half
dollars, whereby the defendants became liable and promised to
pay plaintiff said sum of $4.50. That the plaintiff is still
the owner and holder of the two said bills of exchange. That,
to wit, on July 1, 1896, the plaintiff, at the special
instance and request of the defendants, sold and delivered to
them certain goods, wares, and merchandise, more particularly
described in the account hereto annexed and made a part
hereof, which account is verified under oath, and that the
defendants promised to pay the plaintiff, six months after
said date, the several prices charged for the several items
in said account, as well as the inland carriage to Liverpool;
the Liverpool charges, insurance, and interest, as specified
in said account, amounting in all to two hundred and
eighty-eight pounds, twelve shillings, and five pence. That
each pound mentioned in said bills of exchange and in said
verified account is equivalent to $4.90 in lawful money of
the United States; each shilling, to 24 1/2 cents; and each
penny, to 2 1/24 cents. That, therefore, the amount due the
plaintiff upon the bill of exchange first above set out,
including protest fees, is two thousand nine hundred and
eleven and 82/100 dollars in lawful money of the United
States, with legal interest; and the amount due the plaintiff
upon the second bill of exchange above set out, including
protest fees, is, in lawful money of the United States,
eleven hundred and eighty-one and 44/100 dollars, with legal
interest; and the amount due the plaintiff upon said verified
account is, in lawful money of the United States, fourteen
hundred and fourteen and 24/100 dollars. That the aggregate
amount due the plaintiff from the defendants is $5,507.54,
with legal interest. The said bills of exchange and said
account are long since due, and, though often requested, the
defendants refuse to pay the same, or any part thereof, to
plaintiff's damage ten thousand dollars.'
And
thereupon it prayed for judgment against each of the
defendants, and against the firm of Wagner & Chabot, for its
debt, with interest and for costs.
The
defendants excepted to the pleadings of the plaintiff, on the
ground that it appears from the plaintiff's petition that
it is a foreign corporation, doing business in the state of
Texas, and was doing business at the time the cause of action
accrued; that it does not appear that the plaintiff
corporation has filed its articles of incorporation, and
obtained a permit to do business, in Texas, as provided by
law; nor does it appear from the petition that the
transaction set out and sued upon by the plaintiff
constituted either interstate or foreign commerce.
Subject
to the action of the court on the foregoing exception, the
defendants answered, tendering the general issue, and
further specially answering, say:
'That in the matters and things set out in
plaintiff's petition, and at the times thereof, the
plaintiff was a foreign corporation, incorporated under and
by virtue of the laws of the kingdom of Great Britain, and
was doing business in the state of Texas, through the
defendants herein as its agents, and that the business
transacted and sued upon by plaintiff was business transacted
in the state of Texas in violation of the laws thereof, and
that the plaintiff had not then filed with the secretary of
state of the said state of Texas its articles of
incorporation, and had obtained no permit to do business in
the state of Texas, and that, therefore, it cannot recover
for the matters and things set out in said petition. Further
answering, these defendants say that, during the years 1894,
1895, and 1896, they were wholesale dealers in, and
manufacturers' agents of, china, crockeryware, and
earthenware of all descriptions, located in the city of San
Antonio, and carrying on such business through traveling
representatives in the state of Texas and in the republic of
Mexico. That during the years 1894 and 1895 the defendants
purchased from the plaintiff its different classes of
manufactured crockery, ironstone, china, and earthenware,
upon the agreement and condition that the defendants would
and should take orders from retailers of such goods in the
state of Texas and the republic of Mexico, as well as goods
desired by themselves for use in their retail business in the
city of San Antonio. That the plaintiff should ship said
goods, wares, and merchandise direct from its place of
manufacture, from Hanley, in the county of Staffordshire,
England, by way of New Orleans, to San Antonio, Texas. All
goods intended for shipment on orders taken by the defendants
to be crated separate, and marked as the defendants desired,
so as to enable the defendants to break bulk at New Orleans,
and ship them in car-load lots, at a common through rate, to
all common points in Texas where such orders had been taken.
All such shipments to be billed direct to the defendants, and
to be paid for by the defendants at the prices set out in the
schedule hereto attached, marked Exhibit No. 13. In addition
to which prices to be paid to the plaintiff, the defendants
were to pay all costs of transportation and delivery to the
consignees. In accordance with which agreement these
defendants, at their own cost and expense, employed traveling
salesmen to solicit such orders in the state of Texas and the
republic of Mexico, and that all such orders to taken were
filled, the goods packed in crates, marked, and shipped as
directed by the defendants. That in the latter part of the
year 1895, the plaintiff desired to discontinue its contract
and agreement to fill all orders taken by the defendants in
the state of Texas, whereupon these defendants sent their
agent, Mr. G. R. Spielhagen, to the...
