Imágenes de páginas
PDF
EPUB

place of business within the State, and appointed an agent upon whom process may be served, - yet such a purchase is a sufficient doing of business within the State as to render the foreign corporation amenable to the jurisdiction of the courts of the State for the purpose of enforcing against it the payment of the purchase price, if jurisdiction can be obtained in the manner provided by the laws of the State.' It has been held that where the agent of a foreign insurance company through whom the insurance is effected las no larger authority from the company than to receive and transmit to the home office applications for insurance, and to receive from that office and deliver the insurance policies which are issued and transmitted in pursuance of such applications, then the situs of the policy is in the State of the home office, and it is held to take effect as a contract as soon as it is signed by the proper officers at the home office and put in the mail for transmission; for from that moment it becomes a binding and irrevocable contract between the parties; and inasmuch as the acceptance of the application, the signing, issuing, and mailing of the policy all take place within the State of the home office, the situs of the contract is deemed to be in that State, and not in the State of the agent to whom it is transmitted for delivery. The same rule has been held to apply where the policy, instead of being sent to the assured directly by mail, is sent to the company's agent at the domicile of the assured to be by him delivered to the assured. Whether the

[ocr errors]

i Colorado Iron Works v Sierra Grande Min. Co., 15 Colo. 499; 8. C. 22 Am. St. Rep. 433; 9 Rail. & Corp. L. J. 113; 25 Pac. Rep. 325.

Hyde v. Goodnow, 3 N. Y. 266; Western v. Genesee Mut. Ins. Co., 12 N. Y. 258; Huntiey v. Merrill, 32 Barb. (N. Y.) 626.

Western v. Genesee Mut. Ins. Co., supra; Huntley v. Merrill, supra. In the former of these cases it was said: “When the application was received and approved by the company, and the policy executed and put in

course of transmission to the insured, the contract was complete, and both parties became bound; so that if a loss had occurred before its actual receipt by the insured, the company would have been responsible. The contract was consummated by the final assent on the part of the company, and upon that event, and not upon its delivery to the assured, became operative. The validity of the contract is therefore to be determined by the law of New York. Here it was made, and here it was to be performed."

last proposition is sound must depend upon the predicate that the authority of the agent, when the policy is received by him from the home office, is limited to a delivery of it to the insured. Where, under similar circumstances, by the terms of the policy itself it is not to be valid unless countersigned by the local agent, and where it is so countersigned and delivered by him, the situs of the contract, according to the view taken in Massachusetts and in Maryland, is the State within which it is so countersigned and delivered."

I Daniels v. Hudson River Fire Ins. Co., 12 Cush. (Mass.) 416, 422; 8. C. 59 Am. Dec. 192; Heebner v. Eagle Ing. Co., 10 Gray (Mass.), 131 ; 8. C. 69 Am. Dec. 308; Oromwell v. Royal Canadian Ins. Co., 49 Md. 366; 8. C. 33 Am. Rep. 258. See also Thwing v. Great Western Ins. Co., 111 Mass. 109, where it was held that, as the policy was delivered and accepted and the premium note signed by the assured at Boston, the situs of the contract was therefore in Massachusetts. Where & citizen of South Carolina made, in

6350

that State, an application for membership in a Maryland mutual assessment life insurance association, and the rules of the association required proof of death and assessments to be made in Maryland, it was held that the contract was to be performed in Maryland, and that the corporation having neither office, officer, nor property in South Carolina, & suit for a breach of contract could not be maintained against it in South Carolina. Rodgers v. Mutual Endowment &c. Asso., 17 S. C. 406.

CHAPTER CXCVI.

ACTIONS BY FOREIGN CORPORATIONS. SECTION

SECTION 7977, Power of foreign corporations

porations to do business to gue.

within the State. 7978. For what causes of action. 7982. Pleading statutes invalidating 7979. Rights of action how affected

contracts of foreign corporaby failing to comply with

tions not authorized to do statutes prescribing condi

business in the State. tions upon which it may en- 7983. Power to buy at execution ter the State to do business.

sales, 7980. Further of this subject.

7984. Allegation of corporate exist7981. Alleging compliance with stat

ence in actions by and against ute permitting foreign cor

foreign corporations.

[ocr errors]

8 7977. Power of Foreign Corporations to Sue. - The power of a corporation to make and take contracts in a State other than the State or country of its creation, would be utterly ineffectual and illusory if it did not carry with it the power to avail itself of the ordinary remedies afforded by the law of such other State to its own citizens and corporations for the vindication of rights and the redress of wrongs. It may, therefore, be laid down, as a general principle, that wherever a foreign corporation has, within the domestic jurisdiction, the power to become the obligee in a given contract, it has the same right of action to enforce the performance of that contract, or recover damages for its breach, which is afforded by the laws of such State to domestic persons or corporations. This doctrine is often roughly expressed in

[ocr errors][merged small][merged small]

the proposition that a corporation created by the laws of one State may maintain an action in another State or country, unless restrained from so doing by the local laws of such State or country.' Statutory restraints upon this power have been imposed by the legislatures of many of the States. These have already been considered.2

§ 7978. For What Causes of Action.—The principle being conceded that a foreign corporation may sue for the redress of injuries in the domestic jurisdiction, it must follow, in the absence of statutory restraints, that it may sue upon any cause of action for which a domestic person or corporation might sue."

(N. Y.) 478; New Jersey &c. Bank v. Thorp, 6 Cow. (N. Y.) 46; Society &c. v. Wheeler, 2 Gall. (U. S.) 105; Portsmouth Livery Co. v. Watson, 10 Mass. 91; Pendleton v. Bank of Kentucky, 1 T. B. Mon. (Ky.) 171; Taylor v. Bank of Illinois, 7 T. B. Mon. (Ky.) 576, 584; Bank of Marietta v. Pindall, 2 Rand. (Va.) 465; Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 370; Bank of Edwardsville v. Simpson, 1 Mo. 184; Rees v. Conococheague Bank, 5 Rand. (Va.) 326; 8. c. 16 Am. Dec. 755; Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Mechanics' Bank v. Godwin, 14 N. J. L. 439; Wellersburg &c. Plank Road Co. v. Young, 12 Md. 476; Clarke v. New Jersey Steam Nav. Co., 1 Story (U. S.), 531; British American Land Co. v. Ames, 6 Metc. (Mass.) 391; Savage Man. Co. v. Armstrong, 17 Me. 34; s. c. 35 Am. Dec. 227; Day v. Essex Co. Bank, 13 Vt. 97; Bank of Washtenaw v. Montgomery, 3 Ill. 422; Taylor v. Bank of Alexandria, 5 Leigh (Va.), 471; Libbey v. Hodgdon, 9 N. H. 394; Guaga Iron Co. v. Dawson, 4 Blackf. (Ind.) 202; Tombigbee R. Co. v. Kneeland, 4 How. (U. S.) 16; New York Dry Dock v. Hicks, 5 McLean (U.S.), 111;

Lucas v. Bank of Georgia, 2 Stew. (Ala.) 147.

1 Bank of Edwardsville v. Simpson, 1 Mo. 184; Bank of United States v. Deveaux, 5 Cranch (U. S.), 61, 91; Henriques v. Dutch West India Co., 2 Ld. Raym. 1532; s. c. 2 Strange, 807; Dutch West India Co. v. Van Moyses, 1 Strange, 612; s. c. 2 Ld. Raym. 1535, note. This is very old law; and the meaning is that a foreign corporation, having the right of action against a resident of the domestic forum, is allowed to sue and recover judgment thereon in its corporate name. Thus, the Dutch West India Company were allowed to sue in its corporate name in the English King's Bench for money which had been borrowed from them at Amsterdam, which was payable in bank there, and to recover judgment for the same. Dutch West India Co. v. Van Moyses, 1 Strange, 612; s. c. 2 Ld. Raym. 1535, note; Henriques v. Dutch West India Co., 2 Ld. Raym. 1532; s. c. 2 Strange, 807.

* Ante, § 7928, et seq.; § 7950, et seq.

As to which, see ante, § 7380, et seq.; Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 370; Henriques v. Dutch West India Co., 2 Ld. Raym. 1532; 8. c. 2 Strange, 807.

Accordingly, it has been held that a foreign corporation can maintain an action for a libel in the courts of Illinois.

§ 7979. Rights of Action how Affected by Failing to Comply with Statutes Prescribing Conditions upon Which It may Enter the State to do Business. We have already had occasion to consider the effect upon the contracts of foreign corporations made within the domestic State, of its failure to comply with the provisions of the statute law of such State prescribing the conditions upon which it may enter the State and do business therein, and we have seen that the courts are divided upon the question whether such a statute avoids such contracts unless it says so in explicit terms. Coming now to consider the question of the failure to comply with such statutes upon the right of the foreign corporation to maintain actions in the courts of the State, it is plain that this distinction must be taken: If the foreign corporation is suing upon a contract which it has made within the domestic State before it had complied with the laws of such State prescribing the conditions upon which it may enter and do business therein, then its right to maintain the action will depend upon the view which the courts of the particular State take of the controverted question whether the effect of its failure to comply with such a statute is to render any contract made by the foreign corporation within the domestic State void in the sense that it cannot be enforced by an action in the domestic tribunal; and, as that question has already been gone over, it will not again be considered. Outside of that question, there is a mass of authority to the effect that, although a foreign corporation may have neglected to comply with the provisions of the domestic statutes prescribing the terms and conditions upon which it may enter the domestic State for the purpose of doing business therein, yet it nevertheless does not forfeit the general right of action, in the courts of the State, which is conceded alike to non-resident persons and corporations."

3

> Jewellers' Mercantile Agency u. * The following cases hold that the Douglass, 35 Ill. App. 627.

failure to comply with such statutory · Ante, $$ 7950, 7956, 7957.

conditions does not oust the foreign 398

6353

« AnteriorContinuar »