Wiley Electric Co. of Jackson et al. v. Electric Storage Battery Co.

• Decision Date: 01 May 1933
• Docket Number: 29776
• Citation: 147 So. 773,167 Miss. 842
• Court: Mississippi Supreme Court
• Parties: WILEY ELECTRIC CO. OF JACKSON et al. v. ELECTRIC STORAGE BATTERY CO

147 So. 773

167 Miss. 842

WILEY ELECTRIC CO. OF JACKSON et al. v. ELECTRIC STORAGE BATTERY CO

No. 29776

Supreme Court of Mississippi

May 1, 1933

Division A

1 CORPORATIONS.

Whether foreign corporation is doing business within state is largely question of fact to be determined by circumstances of each particular case.

2 CORPORATIONS.

Ordinarily to constitute "Joing business" within statute requiring foreign corporations to comply with certain requirements, there must be doing of some works or exercise of some functions for which corporation was created.

3. CORPORATIONS.

In considering question whether foreign corporation is doing business within state, fact that it is authorized to do business there in justifies inference that it is doing business as authorized.

4. CORPORATIONS. Foreign corporation engaged in manufacture and sale of storage batteries held, under facts, to be "doing business" within state within provisions of regulatory statute (Laws 1928, chapter 90, section 11).

The corporation was duly qualified and authorized to do business within state, and a course of continuous business for more than ten years in about two hundred communities, covering practically the entire state, was proved, during which time numerous contracts were executed and traveling representatives were authorized and did execute contracts. Local storeroom operators were urged to secure contracts, and payments were made by taking trade acceptances.

5. CORPORATIONS. Foreign corporation doing business within state,

not having complied with regulatory statute, could not bring action in state on notes due it (Laws 1928, chapter 90, section 11).

Laws 1928, chapter 90, section 11, requires foreign corporation doing business within state to file in the office of the secretary of state written power of attorney designating the secretary of the state, or in lieu thereof another agent, as its agant for service of process.

HON. W. H. POTTER, Judge.

APPEAL from the circuit court of Hinds county HON. W. H. POTTER, Judge.

Action by the Electric Storage Battery Company against the Wiley Electric Company of Jackson and others. Judgment for plaintiff, and named defendant and another appeal. Reversed and dismissed.

Reversed and dismissed.

Howorth & Howorth, of Jackson, for appellants.

The court should have sustained defendant's motion to dismiss this case.

Elliott Electric Co. v. Clevenger (Tex.), 300 S.W. 91; Bigelow v. Delaware Punch Co. (Tex.), 37 S.W.2d 353; Ulmer v. First Nat. Bank of St. Petersburg (Fla.), 55 So. 405; Jefferson Island Salt Co. v. Longyear (Ala.), 98 So. 119; Sullivan v. Vernon et al. (Ala.), 25 So. 60; Geo. W. Muller v. First Nat. Bank of Dothan (Ala.), 57 So. 762; Power v. Calvert Mortgage Co., 112 Miss. 319, 73 So. 51; State ex rel. Amalgamated Republic Mines Co. v. Nichols (Wash.), 91 P. 632; Dark Tobacco Growers' Co-op. Ass'n v. Robertson (Indiana), 150 N.E. 106; American Ry. Express Co. v. R. Rouw (Ark.), 294 S.W. 416; Miellmeier v. Toledo Scales Co. (Ark.), 193 S.W. 497; Vickers et al. v. Buck's Stove & Range Co. (Kan.), 79 P. 180; American Ry. Express Co. v. Fleishman, Morris & Co. (Va.), 141. S.E. 253; Milton-Freewater & Hudson Bay Irr. Co. v. Skeen (Ore.), 247 P. 756; Consolidated Wagon & Machine Co. v. Kent (Idaho), 132 P. 305; Hartstein v. Seidenbach's Inc. (N. Y.), 222 N.Y.S. 404; F. J. Emmerich v. Sloan (N. Y.), 95 N.Y.S. 39, 1129; Gaunt v. Nemours Trading Corp. (N. Y.), 186 N.Y.S. 92; Bloom v. Wrought Iron Novelty Corp. (N. Y.), 219 N.Y.S. 92; L. B. Foster Co., Inc., v. Koppel Industrial Car & Equip. Co. (N. Y.), 215 N.Y.S. 214.

The court erred in holding that plaintiff corporation could maintain this suit without having complied with the provisions of section 11 of chapter 90 of the Laws of 1928 (sec. 4140, Code of 1930).

National Sign Corp. v. Maccar Cleveland Sales Corp. (Ohio), 168 N.E. 758; Int. Harvester Co. v. Commonwealth (Kan.), 145 S.W. 393, 234 U.S. 579; 8 Thompson on Corporations (3 Ed.), sec. 6625; John Deere Plow Co. v. Wyland et al. (Kan.), 76 P. 863; Knapp v. Bullock Tractor Co. (Cal.), 242 F. 543; Interstate Amusement Co. v. Albert (Tenn.), 161 S.W. 488, 239 IT. S. 560; Cheney Bros. v. Massachusetts, 246 U.S. 155; Cone v. New Britain Machine Co. (Ohio), 20 F.2d 593; Browning v. Waycross (Ga.), 233 U.S. 19; Phillips Co. v. Everett (Mich.), 262 F. 341; A. H. Andrews Co. v. Colonial Theatre Co. (Mich.), 283 F. 471; Langston v. Phillips (Ala.), 89 So. 523; Iron v. Simeon L. & Geo. H. Rogers (N. Y.), 166 F. 781; McNeill v. The Electric Storage Battery Co. (S. C.), 96 S.E. 134; Atty-Gen. v. The Electric Storage Battery Co. (Mass.), 74 N.E. 467; Cunningham v. Mellons Food Co., 201. N.Y.S. 17; Plibrico Jointless Firebrick Co. v. Waltham Bleachery, etc. (Mass.), 174 N.E. 487; Midland Linseed Products Co. v. Warren Bros. (Tenn.), 46 F.2d 870; Carroll Electric Co. v. Freed-Eiseman Radio Corp. (D. C.), 50 F.2d 993; La Porte Keinekamp Motor Co. v. Ford Motor Co., 24 F.2d 861; Ford Motor Co. v. State (N. D.), 231 N.W. 883; Clarksdale Agency v. Cole, 87 Miss. 637, 40 So. 228; M. Levy & Sons v. Jeffords (Miss.), 105 So. 1; Quartette Music Co. v. Haygood, 108 Miss. 755, 67 So. 211; Peterman Construction & Supply Co. v. Blumenfeld, 156 Miss. 55, 125 So. 548.

The courts are unanimous in holding that each case must be decided on its own individual facts and the evidence in the case at bar establishes conclusively, in our opinion, the fact that the battery company was doing business in the state of Mississippi as well as authorized to do business here and the trial court erred in holding otherwise.

Appellee concludes its brief with an appeal to the court that to reverse this case would have a disastrous effect on the state of Mississippi. As this court has aptly said in the case of Peterman Construction Co. v. Blumenfeld, 156 Miss. 55, "We cannot vary the law because our sympathy may be excited by the harshness of its particular application to the particular individual." But in the particular case at bar it occurs to us that appellee exaggerates the supposed dire effects of a reversal.

R. H. & J. H. Thompson, of Jackson, for appellee.

The evidence fails to disclose that plaintiff (appellee) was in any sense engaged in "doing business" within the scope of the statute involved. There is no evidence in the record which by the wildest stretch of the imagination can be treated as a basis for holding that the defendants were acting as agents for plaintiff. All that was done by plaintiff was done in the promotion of interstate transactions, namely, sales and shipments of merchandise from without the state to independent wholesale dealers in the state.

Item Company v. Shipp, 140 Miss. 690; Short Films Syndicate, Inc., v. Standard Film Service Company, a court of appeals case not yet reported; Vaccine Co. v. Redman, 28 O. D. 4; Soap Co. v. Bogue, 114 O. S. 149; List v. Tobacco Co., 114 O. S. 361; Blodgett v. Lanyon Zinc Co., 120 F. 893; Commercial Co. v. Manufacturing Co., 55 O. S. 217; Fruit Co. v. Armour Car Lines Co., 74 O. S. 168; Dosier v. State of Alabama, 218 U.S. 138; Hyman v. Hays, 336 U.S. 178; Manufacturing Co. v. Collay, 247 U.S. 21.

Argued orally by Mrs. Lucy Somerville Howorth, for appellant.

OPINION

Cook, J.

The Electric Storage Battery Company, a New Jersey corporation, instituted this suit in the circuit court of Hinds county, Mississippi, against H. A. Wiley, an individual, the Wiley Electric Company of Jackson, Mississippi, and Wiley Electric Company of Greenville, Mississippi, on two promissory notes for the aggregate sum of ten thousand eight hundred ninety-two dollars. Upon the filing of defensive motions and pleas, a nonsuit was entered as to H. A. Wiley, and the cause was tried before the court without the intervention of a jury, resulting in a judgment in favor of the plaintiff for the full amount sued for; and from this judgment this appeal was prosecuted.

The suit was brought on two promissory notes, dated and executed at Jackson, Mississippi, payable to the appellee at the Capital National Bank of Jackson, Mississippi, and secured by an assignment of stock of the appellant corporations. Each of the appellant corporations filed a motion to dismiss the suit on grounds, in substance, as follows: That the appellee, a foreign corporation, was on and prior to June 1, 1928, authorized to do business in the state of Mississippi, and was doing business in said state, but was not entitled to bring or maintain any action or suit in any of the courts of this state, for the reason that it had failed to comply with the provisions of section 11 of chapter 90, Laws of 1928, in that it did not, on or before June 1, 1928, file in the office of the secretary of state written power of attorney designating the secretary of state, or in lieu thereof another agent, as its agent for service of process, and had not since that date filed, in the office of the secretary of state of Mississippi, any such power of attorney or designation of a resident agent.

Section 11, chapter 90, Laws of 1928, provides, in part, as follows:

"That every foreign corporation doing business in the state of Mississippi, whether it has been domesticated or simply authorized to do business within the state of Mississippi shall on or before June 1, 1928, file a written power of attorney designating the secretary of state or in lieu thereof designate an agent as above provided in this section as its agent upon whom service of process may be had in the event of any suit against said corporation; and any foreign corporation hereafter doing business in the state of Mississippi shall, after the date of the passage of this act, file such written power of attorney designating said secretary of state or other lawful...