Strasbaugh v. Steward Sanitary Can Co. of Delaware & Virginia

Pattison, J., delivered the opinion of the Court. In this case an action was brought by the appellees against the appellants in the Circuit Court for Harford County, on the 19th day of May, 1908, and was on the 13th day of October, 1913, removed from that Court to the Circuit Court for Baltimore County, and was again removed on the 13th day of April, 1914, to the Court of Common Pleas of Baltimore City, where it was tried before a jury and a verdict was rendered in favor of the plaintiff for the sum of one thousand one hundred dollars ($1,100.00), upon which a judgment was thereafter entered. It is from that judgment that this appeal is taken. ⁶³⁵ The first declaration appearing in the record is the amended declaration filed August 9th, 1912. This contained the seven common counts and two special counts.

These special counts read as follows: “8th. For that whereas the said Leonard Steward and John A. Steward, partners trading as L. & J. A. Steward, were on or about the 25th of August, in the year 1906, engaged in the manufacture and sale of tin cans for the packing of fruits and vegetables, and the defendants were engaged in such business as made convenient and necessary the purchase by them of such cans, and the defendants, on or about the day and date aforesaid, purchased from said Leonard and John A. Steward, partners, trading as L. & J. A. Steward, forty-three thousand six hundred and fifty (43,650) inch tin cans at a cost of twenty dollars for each and every thousand, and the said Stewards bargained, sold and delivered said cans to said defendants, and whereas, subsequently thereto, to wit, on or about the * * * day of * * * in the year * * * , the said Leonard Steward and John A. Steward, partners as aforesaid, bargained, sold, set over and assigned all their property of every description in the States of Delaware, Maryland and Virginia, including chattels, choses in action, book accounts, business and goodwill to the plaintiff, which then and there became the owner thereof, and although due demand has been made for the payment of the same, the defendants have failed so to do; and “9th. For that whereas the said Leonard and John A. Steward, partners trading as L. & J. A. Steward, were, on or about the 25th of August, in the year 1906, engaged in the manufacture and sale of certain sanitary capping machines, which were used for the purpose of sealing tin cans used for the packing fruits and vegetables, and the defendants were engaged in such business as made it convenient and necessary for them to purchase or hire such capping machines, and the said defendants, on or about the day and year ⁶³⁶ aforesaid, hired from said Leonard and John A. Steward, partners, trading as L. & J. A. Steward, one of said machines at a rental of $75.00 for the packing season of 1906, and the said Stewards delivered said machine to said defendants for that purpose, and whereas, subsequently thereto, to wit, on or about the * * * day of * * * , in the year * * * , the said Leonard Steward and John A. Steward, partners as aforesaid, bargained, sold, set over and assigned all their property of every description in the State of Delaware, Maryland and Yirginia, including choses in action, book accounts, business and good-will, to the plaintiff, including their charge for said rental against the said defendants, which charge then and there became the property of the plaintiff, and although demand has been made for the payment of the same, the defendants have failed so to do.” Upon demand being made, the plaintiff filed the following bill of particulars: “Shipped August 25th, 1906. “Harry P. Strasbaugh and William Silver, formerly partners, trading as Strasbaugh, Silver & Company, To “The Steward Sanitary Can Company of Delaware, Maryland and Yirginia, assignee of L. & J. A. Steward, Dr. “To 43650 five inch (5 in. x 4% in.) sanitary cans at $20.00 per thousand (purchased August 25th, 1906)....................$873.00 “To hire of one automatic feed double seamer sanitary capping machine for season of 1906................................. 75.00 “Both shipped by L. & J. A. Steward on order and credit of Strasbaugh, Silver & Company, Townsend, Delaware.) “To interest on same from date of delivery.” ⁶³⁷ To the above amended declaration the defendant pleaded: “(1) That there is no such corporation as the Steward Sanitary Can Company o£ Delaware, Maryland and Virginia; and (2) that the defendants never promised as alleged; and (3) never were indebted as alleged.” The plaintiff joined issue on the second and third of these pleas, and traversed the first, and thereafter the defendants filed a fourth plea alleging in substance that the plaintiff had not complied with Section 93 of Article 23 of the Code of 1912. To this plea a replication was entered short upon the docket, and issue joined thereon.

In the course of the trial the plaintiff offered in evidence a copy of the certificate of incorporation or charter granted to the plaintiff under the laws of New Jersey, certified to by the Secretary of State of the State of New Jersey, which was admitted without objection. The plaintiff next offered the following certificate: “The State of Maryland, “Office of the Secretary of State. “I, Robert P. Graham, Secretary of State of the State of Maryland, do hereby certify that the Steward Sanitary Can Company of Delaware, Maryland & Virginia, a corporation, created under the laws of the State of New Jersey, has complied with the requirements of section 68 of Article 23 of the Code of Public General Laws of Maryland, * by filing in this office a duly certified copy of its charter or certificate of incorporation; a certificate, signed by its president, treasurer or a majority of its board of directors, showing its corporate name; the names and addresses of its president, treasurer, secretary and the members of its board of directors; its principal office in this State and in the State of its incorporation; the amount of its capital stock authorized and issued; the number and par value of its shares of stock and the amount ⁶³⁸ paid in thereon; the names and addresses of its shareholders in this State and number of shares of stock held by each; and the amount of capital employed in this State. “That the said corporation has appointed Mr. Henry A. Whitaker, of Bel Air, Maryland, as its agent to reside in the State of Maryland, upon whom legal process against the corporation may be served, and has certified its willingness that so long as any liability remains outstanding against it in this State, the authority of such agent shall continue until a substitute is appointed and certified to the Secretary of State; and has paid to the State of Maryland the statutory registration fee of twenty-five dollars. “I, therefore, hereby further certify, that the said corporation is entitled to transact business in the State of Maryland. “In testimony whereof, I hereunto set my hand and caused to be hereto affixed my official seal, at Annapolis, this 5th day of March, 1915. “(Seal) Robert P. Graham, • “Secretary of State.” The defendants objected to the admission of this certificate in evidence, and the objection being overruled an exception was noted to the ruling of the Court thereon. Section 93 of Article 23 of the Code of Public General Laws (1912) or sections 137-138 of said Article 23 of the Code of 1904, after the passage of the Acts of 1898, Chapter 270, of this State provides that: “Every foreign corporation which has a usual office or place of business in this State, * * * shall, before doing business herein, file with the Secretary of State, who shall record the-same, (1) a certified copy of its charter or certificate of incorporation; (2) a certificate to be renewed annually before the first day of April in every year, subscribed and sworn to by its president or treasurer, or a majority of its board of ⁶³⁹ directors and accompanied by the annual fee of one dollar for recording such renewal, showing (a) the corporate name; (b) the names and addresses of its president, treasurer, secretary and the members of its board of directors; (c) its principal office in this State and in the State of incorporation; (d) the amount of its capital stock authorized and issued, the number and par value of the shares and the amount paid in thereon, and the names and addresses of its shareholders in this State, and the number of shares held by each, and the amount of its capital employed in this State; (e) the name and address of its agent, resident in this State, and authorized to accept service of process upon it; and (/) its willingness that so long as any liability remains outstanding against it in this State, the authority of such agent shall continue until a substitute is appointed and certified to the Secretary of State. At the time of filing the original papers required by this section every such foreign corporation shall pay to the Secretary of State for the use of the State, a fee of twenty-five dollars, upon receipt of which he shall issue to it the certificate setting forth that it is entitled to do business in this Stale." And section 94 provides that: “Evei-y officer of any such foreign corporation which fails to comply with the provisions of the preceding section, and every agent of such non-complying corporation, who transacts business for it in this State, shall be guilty of a misdemeanor and liable to a fine of two hundred dollars.

Such failure shall not affect the validity of any contract made with such noncomplying corporation, but no suit shall be maintained in any of, the courts of this State by any such corporation until it has complied with the requirements of this article.” This certificate was offered under the defendant’s fourth plea which alleges that the plaintiffs have not complied with the requirements of said section 93 of the Code. The coun ⁶⁴⁰ sel for the defendants contended, as is disclosed by the record, that, by the introduction of this certificate in evidence, the judgment of the Secretary of State was improperly substituted for that of the Court in determining the question whether or not this section of the Code had been complied with by the plaintiff corporation, and insisted that the papers filed with the Secretary of State, properly certified to by him, and not such certificate, should have been offered in evidence to show a compliance with the statute. It is one of the requirements of the statute that the Secretary of State shall, as evidence of a compliance therewith, issue to the corporation a certificate setting forth that it is entitled to do business in this State when it has done those things which are required of it by the statute. The certificate in this case is a substantial compliance with this provision of the statute, ánd, we think, is admissible in evidence, without the introduction of the papers themselves, from which the certificate is made.

It is true that the certificate is dated after the filing of the plea, but this, we think, is immaterial in view of the decision of this Court in the case of Kendrick & Roberts v. Warren Brothers, 110 Md. 47 . In that case the defendant had not, at the time of the institution of the suit, complied with section 137 of said article of the Code of 1904, containing provisions similar to those found in section 93 of the present Code, but thereafter during the progress of the suit complied with such provisions of the statute. It was contended by the defendant that the suit could not he maintained because of the provision contained in section 140, that, “ho such foreign corporation shall be permitted to maintain any action either at law or equity in the Courts of this State until the provisions of section 137 shall have been complied with.” But this Court held that the plaintiff was not “prohibited from prosecuting and maintaining its suit after a compliance * * * after the institution of the suit.” What was there said of that case, applies, we think, to the facts of this case and thus we find no error in the rulings ⁶⁴¹ of the Court helow in admitting such certificate in evidence. The second exception was to the action of the Court in permitting the witness for the plaintiff to state that the market value of the cans sold was twenty dollars per thousand, the price at which the declaration alleges the cans were sold.

The admission of this testimony could not have injured the defendants, even should it be regarded as wrongfully admitted. George IT. Steward, a witness for the plaintiff, was asked upon cross-examination: “Q. The cans which were shipped August 25th to which you have read the bill, when were they ordered? A. I understand that they were included in the contract of May 4th.” The plaintiff then moved “to strike out the evidence already offered in reference to goods alleged to have been sold on August 25th.” In passing upon this motion the Court addressing the counsel for the plaintiff said “the idea of it is that you have distinctly declared upon the sale made August, 1906, if there was anything leading up to that — if there was a prior sale or that was a consummation of a previous contract, there was nothing in the declaration to show that.” Whereupon the plaintiff asked and obtained leave to amend its declaration by interlining in both the eighth and ninth counts the words “and prior thereto” and by striking therefrom the words “on or about the day or date aforesaid” and inserted in lieu thereof, “in pursuance of a contract dated May 4th, 1906.” The counts when so amended read as follows: “8th.

For that whereas the said Leonard Steward and John A. Steward, partners trading as L. & J. A. Steward, were on or about the 25th day of August, in the year 1906, and prior thereto, engaged in the manufacture and sale of tin cans for the packing of fruits and vegetables, and the defendants were engaged in such business, as made convenient and necessary the purchase by them of such cans, and the defendants in pursuance of a contract dated May 4th, 1906, purchased from,” &c. ⁶⁴² “9th. For that whereas the said Leonard and John A. Steward, partners trading as L. & J. A. Steward, were, on or about the 25th day of August, in the year 1906, and prior thereto, engaged in the manufacture and sale of certain sanitary capping machines which were used for the purpose of sealing tin cans used for the packing fruits and vegetables, and the defendants were engaged in such business as made it convenient and necessary for them to purchase or hire such capping machines, and the said defendants, in pursuance of a contract dated the 4th day of May, hired from the said Leonard and John A. Steward,” &c. The bill of particulars was also amended by striking therefrom the italicized word “purchased” and inserting in lieu thereof the word “shipped.” Upon the filing of the amended declaration the defendant filed pleas of limitation to the amended eighth and ninth counts, which, upon motion of the plaintiff, were not received by the Court. It is the contention of .the defendant that the declaration as amended contains a new cause of action, and that the pleas of limitation were at such time properly pleaded thereto-, and should have been received by the Court.

If by such amendment a new cause of action was set up, the contention of the defendant, no doubt, is correct by the decisions of this Court. Schulze v. Fox, 53 Md. 37 ; Wolf v. Bauereis, 72 Md. 481 ; W. U. Tel. Co. v. State, use of Nelson, 82 Md. 293 ; Hamilton v. Thirston, 94 Md. 253 ; Zier v. Chesapeake Railway Co., 98 Md. 35 ; Di Giorgio Co. v. Stock, 116 Md. 201 ; Schuck v. Bramble, 122 Md. 411 ; Spencer v. B. & O. R. R. Co., 126 Md. 194 . But in our opinion the cause of action is the same as that found in the preceding amended declaration.

The plaintiff by the eighth count of the first amended declaration seeks to recover the purchase price of 43,650 cans purchased, as the declaration alleges, by the defendant from L. & J. A. Steward, assignors of the plaintiff, on or about ⁶⁴³ August 25th, 1906, at the