West Jersey Ice Manufacturing Co. v. Armour

Opinion by Orlady, J., After this action was at issue in the court below it was, by [447] a written agreement of counsel, referred to an attorney under the provisions of the Act of April 22, 1874, P. L. 108. The referee heard the evidence and filed a report by which he directed a judgment in favor of the plaintiff. The defendant filed exceptions to this report which, after a hearing, were dismissed, and the report of the referee was then confirmed by the court. The defense urged on this appeal is, that under the evidence adduced the fact is established that the plaintiff, being a foreign corporation, was not registered in this commonwealth as required by law, and therefore it could not recover.' This was not merely a sale of goods which were to be delivered in Pennsylvania. It was a contract for the delivery and storage of ice at designated places without regard to the source of supply or place of manufacture, and, if the case is to be decided solely upon the facts found in the referee’s report, as a special verdict, the plaintiff is not entitled to recover, for the reason that it is not found as a fact that the property for which the plaintiff seeks to recover was brought into this state from another. An examination of the uncontradicted evidence of the plaintiff which is attached to the record shows that the plaintiff is a corporation, created by and existing under the laws of the state of New Jersey; that it manufactured artificial ice at Camden in that state ; that the corporation was not registered in this state in compliance with our laws, at the time the suit was brought, nor prior thereto; that the contract which is the basis of this action was made in this state, and was to be performed in this state ; that the amount claimed by the plaintiff is for ice, some of which was made at its manufactory in Camden, N. J., and some had been purchased elsewhere and delivered by wagons from Camden, N. J., and also from railroad cars in Philadelphia; that the contract provided for the delivery and storage of ice, seven cakes to the ton, at defendant’s ice houses, at prices ranging from ft.40 to $2.15 per ton, “ for first usual winter filling ” and “ for balance of year,” and the deliveries began on March 20, and were intended to continue during the year 1896; that the plaintiff complied with its contract to date of June 13,1896, though the number and amount of deliveries are not given. The only items in dispute are those from June 3 to July 8, 1896, and, as shown by the plaintiff’s statement, it claims for 561|- tons of ice, which had been delivered on fourteen different days to five different storage houses in Pennsylvania. [448] This case is materially different in its facts from any one decided by the Supreme or this Court. One of the objects of the Act of April 22, 1874, P. L. 108, was to bring corporations employing their capital in this state and doing any business here within the taxing power of the commonwealth: Kilgore v. Smith, 122 Pa. 48. The contract before us, having been made and performed in the state must be treated as a Pennsylvania contract: Perlman & Co. v. Sartorius, 162 Pa. 320. If a contract is made in violation of a statute there cannot be a recovery on it. It is not necessary that the statute should expressly declare the contract to be void; an action founded upon a transaction prohibited by a statute cannot be maintained although a penalty be imposed for violating the law: Holt v. Green, 73 Pa. 198; Thorne v. Ins. Co., 80 Pa. 15; Johnson v. Hulings, 103 Pa. 498. Foreign corporations have no absolute right of recognition in this state, but depend for that and the enforcement of their contracts here upon the assent of this state, according to the terms it may prescribe : List v. Com., 118 Pa. 322. He who seeks to avoid payment accruing to a foreign corporation in the ordinary course of business must show that the contract upon which suit is brought was in violation of the statute. On the other hand, where a foreign corporation seeks to enforce a contract, made in this state under like conditions the burden is upon it to show compliance with our laws in order to recover: Steel Tube Co. v. Riehl, 9 Pa. Superior Ct. 220. It was held by this Court in Blakeslee Mfg. Co. v. Hilton, 5 Pa. Superior Ct. 184, that “ the words ‘ doing any business,’ as used in the act, should not be construed to mean taking orders or making sales by samples, by agents coming -into our state from another for that purpose. To hold otherwise would make the act offend against the constitution of the United States as imposing unlawful restrictions on interstate commerce. The business to which it refers does not include the taking of orders, or contracting for the sale of goods to be shipped from another state.” The subject of the contract in that case was “ one steam pump ” which was delivered to a common carrier on board cars at Duquoin in the state of Illinois. That case was adopted by the Supreme Court in Mearshon & Co. v. Lumber Co., 187 Pa. 12, and, applying it to the facts at the time under -consideration, it said: “ The facts of the case cited are quite simi [449] lar to those of the case at bar, and we regard the foregoing decision as quite in point, and controlling the question at issue. The facts being as stated in the opinion, viz: the plaintiff is a corporation duly incorporated in the state of Michigan. Its manufacturing operations are there conducted; its capital is there invested, none of it is invested here. The order for the goods in question was given to its salesman and agent in Pennsylvania, and by him sent to the plaintiff, who executed the order in Michigan.” In Steel Tube Co. v. Riehl, supra, the action was on a promissory note which had been given pursuant to a contract made and executed in the state of New Jersey. In Wolff Dryer Co. v. Bigler & Co., 192 Pa. 466, the plaintiff contracted to deliver f. o. b. cars at Harrisburg, a “ brick dryer ” in which case the Supreme Court said, “ It had no office or place of business in Pennsylvania, and no part of its capital was here. The machinery sold was shipped either directly from its factory in Chicago or upon its orders given to other manufactories. ' The fact that its agent came into this state and made contracts for machinery to be delivered here did not bring it within the inhibition of the act of 1874.” ■ In like cases, where the contract has been successfully sued on, it has been found that the foreign corporation did not bring any of its capital into this state, nor did it make any investment here, and because of this it w&s held that it did not do any business in this state. In the case at bar we have a contract made in this state and performed here.. While the plaintiff’s place of business was in Camden, N. J., the contract contemplated not a single transaction, but a continuing business within this state during at least the ensuing ten months, which would require an employment or expending of its capital here. Its teams and wagons were used within the state to transport the ice to the defendant’s five business points, and its employees earned wages here. The property in regard to which the contract was made was not a single article intended for a particular purpose, as a mill, a kiln or an engine, but it was an ordinary marketable commodity for which there was a common demand, and over which the plaintiff had entire control within the state; that is, it could deliver to the defendants or sell to other persons. Only a part of the property was made in Camden, N. J., ánd in order to comply with the terms of its contract, the bal [450] anee was purchased from other dealers on board cars in Philadelphia. The evidence shows a doing of business within the state as certainly as if the plaintiff had delivered the output of its factory to any number of places in any part of the state, the only difference being in the degree and extent of the operation, the whole being conducted through its own transporting facilities. As was held in Fertilizer Co. v. Kelly, 10 Pa. Superior Ct. 565, it was, therefore, doing business in this commonwealth within the meaning of the act of 1874. It could recover only upon compliance with our statutory requirements. The eleventh and thirteenth assignments of error are sustained and the judgment is reversed.