Elliott Electric Co. v. Clevenger , 300 S.W. 91 ( 1927 )

The appellant presents the points in view that (1) objection of noncompliance of a foreign corporation with the statute requiring a permit to do business in the state is not ground for general demurrer, but a matter of defense to be pleaded by timely plea in abatement; and (2) the petition pleaded a contract constituting interstate commerce. In this state compliance with the statute of permit to do business, in view of its terms, must be both pleaded and proved to entitle the foreign corporation to maintain the action, where the alleged action appears on the face of the petition to be one which it could not maintain unless such compliance has been made. Taber v. Building Loan Ass'n,91 Tex. 92, 40 S.W. 954; Chapman v. Cash Register Co.,32 Tex. Civ. App. 76, 73 S.W. 909; Turner v. Cotton Oil Co.,50 Tex. Civ. App. 468, 109 S.W. 1113; Levinson v. Oil Co. (Tex.Civ.App.)240 S.W. 1047; and other cases.

The procurement of such certificate being a condition precedent to the right to maintain an action, the petition becomes demurrable if it fails to allege that the certificate has been procured. But the directly contrary rule obtains where the facts alleged in the petition affirmatively show a transaction of the character of interstate commerce. Miller v. Goodman, 91 Tex. 41, 40 S.W. 718, 740; Crews Williams v. Gin Co. (Tex.Civ.App.) 1S9 S.W. 793; Latham Bros. v. Louer (Tex.Civ.App.) 176 S.W. 920; Fennell v. Cement Co. (Tex.Civ.App.)209 S.W. 796; Hull Fiber Co. v. Grain Co. (Tex.Civ.App.)244 S.W. 1062; and other cases. In such case objection of noncompliance with the statute becomes a matter purely of defense, raised by a timely plea, upon extrinsic evidence.

The allegations of the petition are to the effect that the appellant, a foreign corporation, in the line of its business "of manufacturing power fixtures operated by electricity and of repairing electrical machinery" and at the instance of appellee, a resident of Texas, "on or about August 31, 1922, and on sundry other dates, sold to the defendant" certain enumerated "electrical material to be used in connection with defendant's ginning plant" and "a complete set of stator coils, including 150 pounds of No. 11 magnet wire," constructed and "made up in its shop at Shreveport," and "on various and sundry dates furnished the defendant expert men at Nacogdoches, Tex., who did and performed certain various and sundry labor in repairing, overhauling, and putting in order the electrical machinery used by defendant in connection with the operation of his plant," and "paid in cash for defendant's benefit and at his request the expenses and wages of the expert men who performed the labor for defendant upon his plant." The appellant sought to recover the price of the materials and stator coils and the expenses and cost of the labor.

It is believed that the alleged undertaking plainly amounts to the doing of local business in the state requiring a permit to do so in accordance with the statute. Buhler v. Burrowes Co. (Tex.Civ.App.)171 S.W. 791; York Mfg. Co. v. Colley (Tex.Civ.App.) 172 S.W. 206; Browning v. Waycross, 233 U.S. 16, 34 S. Ct. 578, 58 L. Ed. 828; Signal Co. v. State of Va., 246 U.S. 500, 38 S. Ct. 360, 62 L. Ed. 855; Mfg. Co. v. Bank, 176 Ala. 229, 57 So. 762; Elevator Machine Co. v. Candy Co., 156 Mich. 25, 120 N.W. 18; Nursery Co. v. Trostel, 166 Wis. 215,164 N.W. 995, L. R A. 1918B, 311. The materials and parts furnished and the labor done were in repair and putting in running order of property already in the state that needed mending and adjusting. The undertaking to provide the material and parts and to do the work of "repairing, overhauling, and putting in order the electrical machinery" of the gin must be regarded in its entirety. The sale and delivery of the electrical material and the stator coils apparently would not alone have been a performance of the agreement, entitling appellant to enforce the agreement. The allegations warrant the inference of purpose on the part of appellant to do purely local business in its particular line.

The judgment is affirmed.