Augur Steel Axle & Gearing Co. v. Whittier

Morton, J. The plaintiff is a corporation established by the laws of Connecticut. In order to prove its existence as a corporation, which was put in issue by the pleadings, it among other things put in evidence the certificate of the president and directors, which is required by the laws of Connecticut to be deposited with the secretary of state before the corporation shall commence business. Gen. Sts. Conn. 1866, tit. 7, e. 7, § 401. It appearing that this certificate was not deposited until after the goods in suit were sold or consigned to the defendant, his counsel asked the court to rule that for this reason the plaintiff could not recover. The court refused so to rule, but instructed the jury that if the plaintiff corporation had been formed, organized and established in compliance with the laws of the State of Connecticut, and was the owner of the property sold or consigned to the defendant at the time of the sale or consignment, [455] the fact that the certificate had not then been filed would not defeat the action, if it had been filed before the action was commenced. This ruling was correct. Under similar provisions of the statutes of this Commonwealth, it has been held that the O . filing of such certificate's not a condition precedent to the legal existence of the corporation. Merrick v. Reynolds Engine Co. 101 Mass. 381. Hawes v. Anglo-Saxon Petroleum Co. 101 Mass. 385. Whether such is the law of Connecticut is, strictly speaking, a question of fact which, if material, should have been submitted to the jury. But it was not material. The verdict of the jury settles that the corporation was duly formed and organized in compliance with the laws of Connecticut in every respect except the filing of this certificate, and that the defendant dealt with it as a corporation. If it be assumed that until the filing of this certificate, the corporation had not the power to sue and to transact business, it does not follow that this action cannot be maintained. Upon filing the certificate, and thus completing the organization of a legal corporation, the title to the goods sold or consigned to the defendant or to their proceeds would vest in the corporation, which would then have the right to maintain a suit for them. The other exceptions taken by the defendant cannot be sustained. There was sufficient foundation for the admission of secondary evidence of the contents of the letter of the treasurer of the plaintiff. It was within the discretion of the court to allow the' amended declaration to be filed, and the ruling that under it the plaintiff could recover the amount received by the defendant from the sale of the goods consigned to him after deducting proper commissions, was correct. Exceptions overruled.