Catlin & Powell Co. v. Schuppert

Timlin, J. Findings are required to cover and settle controverted questions of fact, but where a fact is established by proper stipulation between the parties, or by admissions of the pleadings, a finding on the same fact is not necessary. Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 527; Sliter v. Carpenter, 123 Wis. 578, 102 N. W. 27; McKenzie v. Haines, 123 Wis. 557, 102 N. W. 33. A finding that the plaintiff was a foreign corporation which had failed to comply with the requirements of sec. 1770b, Stats. 1898, as amended by sec. 27, ch. 351, Laws of 1899, ch. 399, Laws of 1901, ch. 434, Laws of 1901, ch. 124, Laws of 1903, and ch. 506, Laws of 1905, because of the stipulation and the condition of the pleadings was not necessary. It is contended that the findings of the court are contrary to the stipulated facts, in that the facts show a contract for the purchase of shares by the defendant from the plaintiff, while the finding is to the effect that at the defendant’s request the plaintiff purchased and obtained for the defendant the shares in question. But the pleadings, together with the stipulated facts as above recited, are quite sufficient to sustain this finding. We shall therefore consider the contract as one whereby the defendant, a resident of Wisconsin, by letter written from Wisconsin, employed the plaintiff, a stockbroker residing and operating in Eew York, to purchase for defendant in Eew York 1,000 shares of the stock of a corporation foreign to Wisconsin and [647] transmit tbe same to tbe defendant in Wisconsin, where defendant wonld pay through the usual collection agencies, and that the plaintiff, on its part, assented to and fully performed in New York all the contract except the act of delivering the muniments of title to and collecting payment from the defendant. Sec. 1770b, Stats. 1898, amended as above indicated, provides in the last amendment (ch. 506, Laws of 1905) a very complete plan for the regulation of foreign corporations doing business in this state, by requiring each to file with the secretary of state a copy of its charter and the amendments thereunto authenticated as there prescribed, together with certain sworn statements, and that such corporation shall appoint the secretary of state its attorney in fact upon whom service of summons, notices, and process may be made so as to be effectual against the corporation. Such foreign corporations are by this statute forbidden to “transact business or acquire, hold or dispose of property in this state” until they have complied with the foregoing requirements. The foreign corporation must also,“as a condition of its being permitted to begin or continue doing business within this state, comply with all the laws of the state with regard to foreign corporations.” Id. The failure to comply with these provisions of law subjects the foreign corporation to a penalty of $500. This statute also provides: “Every contract made by or on behalf of any such foreign corporation, affecting the personal liability thereof or relating to property within this state, before it shall have complied with the provisions of this section, shall be wholly void in its behalf and on behalf of its assigns, but shall be enforceable against it or them.” This statute has been before the court in Ashland L. Co. v. Detroit S. Co. 114 Wis. 66, 89 N. W. 904; Chicago T. & T. Co. v. Bashford, 120 Wis. 281, 97 N. W. 940; Beaser v. Barber A. P. Co. 120 Wis. 599, 98 N. W. 525; Greek-Am. S. Co. v. Richardson D. Co. 124 Wis. 469, 102 N. W. 888; [648] Presbyterian M. Fund v. Thomas, 126 Wis. 281, 105 N. W. 801; Chickering-Chase Bros. Co. v. White, 127 Wis. 83, 106 N. W. 797; Allen v. Milwaukee, 128 Wis. 678, 106 N. W. 1099. In these cases the statute was applied to a variety of conditions and its general validity sustained. In this case the contractual assent of the plaintiff and its acts in performance of the contract thereby created having been, as we have seen, wholly without the state, merely sending into this state to deliver the muniment of title or to collect the money due from the performance and execution in New York is not transacting business in this state within the meaning of this statute. The assent of the plaintiff and the acts of performance by it were in a place where this statute had no force — beyond the territory in which the statute had the force of law. The stock certificate was transmitted to this state for delivery, but this certificate is a mere muniment of title to the shares, which are fractional interests in the corporate property of the mining company situate outside of this state; and neither such transmission nor the collection of the money due the plaintiff for its services and disbursements in purchasing the shares in New York could be considered to fairly come within the terms “acquire, hold or dispose of property in this state.” These words mean, not that the act of acquisition, but that the property, must be within this state, because the act of acquisition is sufficiently covered by the prohibition against transacting business. The transaction in question was then one which was outside of the terms of the statute mentioned. Coming now to the mandate of this statute relating to the invalidity of contracts made by or in behalf of such unlicensed foreign corporation, it is noticeable that not all contracts so made are void, but only those “affecting the personal liability thereof,” or those not coming within this limitation but which relate to property within this state. It is contended that the words “affecting the personal liability thereof” include all contracts for the breach of which the corporation [649] would be liable in. damages or otherwise. This construction is not permissible, first, because this would include all contracts whatsoever, and the manifest intention of the statute is to include only contracts coming within one or the other of its disjunctive descriptive terms; second, because this would render the words “or relating to property within this state” surplusage and without weight or significance, because such contracts would have been already covered by the prior clause, “affecting the personal liability thereof,” if we should give such construction to this clause as to include all contracts whatsoever. We are forbidden by familiar rules of interpretation to treat any word, phrase, or clause as meaningless or surplusage, unless, indeed, there is no escape from such conclusion. The legislature in making this law may be presumed to have selected these words to harmonize with the prohibition in the same law against transacting business and also with a view to the limitations on its own powers growing out of federal control over interstate commerce. Cooper Mfg. Co. v. Ferguson, 113 U. S. 727. The prohibition against transacting business may, when a proper case arises, be held to be broader than one merely directed against carrying on business within the state, bnt that question is not involved in the determination of this case. But in all cases like the instant ease, not coming within the prohibition against transacting business and sought to be brought within the clause now under consideration and declaring the contract void, the words “affecting the personal liability,” used in describing one of the prohibited classes of contracts, must be held intended to exclude all unilateral contracts, like bills and notes, all contracts fully executed outside of this state upon which there remains as obligation only payment, or payment and delivery, to be made in this state, and all contracts not by their stipulations imposing duties or liabilities on such foreign corporation. Because the contract in question was not, so far as it was made or took effect in this state, one affecting the per [650] sonal liability of tbe plaintiff by any covenant nr stipulation therein contained, and was wholly executed by the plaintiff in New York, and because it did not relate to property within this 'state, and did not constitute, on the part of the corporation, a transaction of business in this state, the plaintiff was entitled to recover thereon within the terms of the statute in question. A majority of the court are also of the opinion that the transaction between the plaintiff and defendant constituted an act of commercial intercourse; hence, as between these parties residing where they did, an act of interstate commerce within the doctrine of Gibbons v. Ogden, 9 Wheat. 1, 190, and Passenger Cases, 7 How. 283-573, 4 Rose’s Notes, 709-717. By the Court. — The judgment of the circuit court is affirmed.