330

THE GREEN BAG

contract it shall have procured such certificate," i.e. a certificate from the Secretary of State that it has complied with all requirements of law to authorize it to do business therein. This pro vision does not apply to foreign corporations unless they are stock corporations. Wright & Co. v. Faulkner, 52 Misc. (N.Y.I 100; South Bay Co. v. Howey, 113 App. Div. (N.Y.) 382. And it applies to them only in case they are doing busi ness in the state of New York. See Penn. Collieries Co. v. McKeever, 183 N.Y. 98. As to what is "doing business in the state " the authorities are too multitudinous to quote here, and they are not altogether harmonious. Then too this section applies only to suits on contract, and does not prevent such unauthorized corporations from suing on other- causes of action. Schlitz Brewery Co. v. Ester, 86 Hun. (N.Y.) 22, affirmed without opinion in 157 N.Y. 714; American Typefounders Co. v. Connor, 6 Misc. (N.Y.) 391. And this limitation is further narrowed to those contracts made within the state by the unauthorized foreign corporations. They can still sue in New York on contracts made by them elsewhere, or upon con tracts made by others in New York and assigned to them. Oreilly, Skelly & Fogarty Co. v. Greene, 18 Misc. (N.Y.) 423. In the principal case the plaintiff was a foreign corporation doing business in New York, and had apparently made the contract sued on in that state, but there was nothing to show whether or not it was a stock corporation. The decision does not lay down any broad doctrine that failure to obtain permission to do business in the state is a defense generally, nor does it overrule the cases which hold that the section applies only to foreign stock corporations. Its only new point is that where there is nothing to show one way or the other whether the foreign corporation is a stock corporation, the court will presume it to be so if under New York law a corporation of its nature could be organized only as a stock corporation. Otherwise it is merely in line with the other authorities on this section of the statute. F. T. C. New York, May 15, 1908. CORPORATIONS. (Foreign Corporation doing Business in State.) Minn. — The Supreme Court of Minnesota, in Thomas Mfg. Co. v. Knapp, 112 N. W. Rep. 989, denied the right of a foreign corporation to maintain an action in the courts of that state on the ground that it had not complied with the requirements of the statute as to the right to do business in the state. The main office of the company seems to have been in Ohio, but it had agencies in various towns in Minnesota, to which it shipped farm machinery for sale. The agents were required to pay the freight on the

goods received by them and to make all reason able efforts to sell the same but the title and owner ship of the machines shipped was to remain in the company subject to its orders until full payment should be made for the same. The corporation claimed that this did not constitute " doing bus iness within the state " but was interstate com merce. The court on review of the authorities stated that a distinction was to be drawn between those cases in which sales were simply made by a traveling salesman and goods shipped directly to the customers and those in which agencies were . established in the state to which goods were to be shipped for sale by resident agents, and held that the acts of plaintiff did not constitute interstate commerce but did constitute a doing of business within the state in violation of law and that no recovery could be had on a contract entered into with an agent for the price of goods shipped to him. CORPORATIONS. (Foreign Corporations doing Business in State.) Kan. — The Supreme Court of Kansas recently had before it a novel proposi tion, relative to foreign corporations doing business within the state. A Kansas statute, known as the Busch Law, requires foreign corporations to comply with certain conditions before engaging in business within the state. The legislature of 1905 authorized the governor to employ competent accountants to investigate the various state departments, and he, on carrying out the provis ions of this enactment, appointed a foreign corp oration to perform the services. After completion of the work the state Treasurer refused payment on the ground that the law contemplated appoint ment of a " person," and called for the doing of certain acts, the performance of which was im possible by a corporation, that the complaining company had not complied with the statutes granting it the right to do business in the state, and could not, therefore, maintain any action therein. The court decided that these conten tions were not well founded; that the services of complainant did not constitute the doing of business within the state, and that even if they did, the foreign corporation law could not be construed as affecting the right of the state to contract for services to be performed for it, not withstanding the other party to the contract might be one whose ordinary business would fall within the purview of- the statute. The case is Haskins & Sells v. Kelly, 93 Pac. Rep. 605. CRIMINAL LAW. (Judicial Legislation.) Cal. — The Supreme Court of California was placed in rather a peculiar position in a recent case heard by it. — People v. Ryan, 92 Pac. Rep. 853. For some time past, it has criticised instructions in