Western Paper Bag Co. v. Johnson

• Decision Date: 23 December 1896
• Citation: 38 S.W. 364
• Parties: WESTERN PAPER BAG CO. v. JOHNSON et al.
• Court: Texas Court of Appeals

38 S.W. 364

WESTERN PAPER BAG CO. v. JOHNSON et al.

Court of Civil Appeals of Texas.

December 23, 1896.

Appeal from district court, Travis county; R. E. Brooks, Judge.

Action by the Western Paper Bag Company against L. V. Johnson & Co. for goods sold and delivered. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

A. H. Graham, for appellant. Geo. F. Pendexter and Warren W. Moore, for appellees.

COLLARD, J.

The appellant, the Western Paper Bag Company, a corporation, of the state of Illinois, brought this suit in the district court of Travis county, February 20, 1895, against appellees, L. V. Johnson and A. H. Achilles, as partners doing business under the firm name of L. V. Johnson & Co., on a verified account for goods, wares, and merchandise for $785.78, credited by certain amounts stated in the petition. Achilles filed a sworn plea, denying partnership. Both defendants invoked as a defense the provisions of the act of the legislature of this state approved April 3, 1889, p. 87 (Rev. St. 1895, art. 745), which is an act requiring foreign corporations for pecuniary profit to file their articles of incorporation with the secretary of state, and imposing certain conditions upon such corporations transacting business in this state, and repealing the act of April 2, 1887. The court, trying the case without a jury, rendered judgment for defendants, from which plaintiff has appealed.

The court filed conclusions of fact and law, as follows:

"Findings of Fact.

"(1) I find that the firm of L. V. Johnson & Co. was composed of the defendants, L. V. Johnson and A. H. Achilles, and that said firm purchased from the plaintiff the goods and merchandise as set out in the petition, and that said firm was justly indebted to the plaintiff, when this suit was brought, on such purchase, in the sum of $681.33, together with six per cent. interest thereon from January 1, 1895. (2) I further find that the plaintiff is a foreign corporation, incorporated under the laws of the state of Illinois, for the purpose of pecuniary profit, and was such foreign corporation at the time said sale of the goods here sued for was made, and has so remained at all times to the present. That said plaintiff corporation, at the time of said sale and the institution of this suit, and continuously up to the present, has failed to file with the secretary of state of the state of Texas a duly-certified copy of its articles of incorporation, and have issued to it by said secretary of state a permit to transact its business in the state of Texas. (3) I further find that the sale of the goods for which this suit is brought was a sale of a portion of a large shipment of goods made into this state by plaintiff, consisting of some five or six car loads of goods shipped to different portions of this state, all consigned to plaintiff's own order, prior to the making by plaintiff of any contract of sale of said goods; and an agent of plaintiffs, after the arrival of said goods in this state, sold and disposed of the same in parcels to many different persons, including the sale to defendants herein. (4) Said shipment of goods into this state was not made in accord with the terms of any interstate contract of sale of said goods entered into prior to the making of said shipment, but said large shipment of goods was made by plaintiff for the purpose of obtaining the benefit of the low rate of freight then obtaining from the point of shipment, which was in the state of Missouri, to the point of destination in the state of Texas, and after the arrival of said goods of the character mentioned in the petition a small portion of said shipment, by a contract of sale entirely made and consummated within this state by and between an agent of plaintiff and defendants themselves, was sold and delivered to de...