66 S.W.2d 814 | Tex. App. | 1933
Wickwire Spencer Sales Corporation, alleging itself to be "a private corporation, duly incorporated under the laws of the State of Oklahoma, with a permit to do business in the State of Texas, and doing an interstate business," brought this suit to recover of Jno. D. Gholson and R. A. Disney upon a promissory note for the principal sum of $3,088.17. The defendants pleaded a general demurrer and general denial. Upon the evidence of the note only, the court gave judgment for the plaintiff.
The defendants, having appealed, present for our determination the question of whether or not it was necessary for plaintiff, in order to support the judgment, to prove its allegation that it had "a permit to do business in the State of Texas." If it was necessary to make such proof, then the allegation was necessary. If the allegation was unnecessary, it may be treated as surplusage. Oklahoma Tool Supply Co. v. Daniels (Tex.Com.App.)
We think it may be said to be a proposition fully supported by the decisions in this state that, if a foreign corporation, denominating itself as such, brings a suit in this state, and in the statement of its cause of action alleges no fact, to show, either expressly or impliedly, that such cause of action arose out of the transaction of business in the state (other than interstate business), it is not necessary to allege a permit to do business in the state. Oklahoma Tool Supply Co. v. Daniels, supra; Elliott Electric Co. v. Clevenger (Tex.Civ.App.)
Oklahoma Tool Supply Co. v. Daniels, supra, was a case exactly like this one. It was therein held that, since R.S. 1925, arts. 1529 and 1536, do not apply to all foreign corporations, but only to such as are transacting business in this state, and not even to the latter if the business constitutes interstate commerce, a pleading which does not affirmatively show the necessity for a permit is good against demurrer, and an issue of the foreign corporation's capacity to sue would have to be raised by special plea of the defendants. The opinion quotes from C.J. as follows: "Where the bill, declaration, or complaint does not show such facts (transaction within the statute), compliance with the requirements of the statutes need not be alleged by complainant, but noncompliance is a matter of defense to be pleaded in bar or abatement." 14A C.J. p. 1360, note 84.
Applying the rule stated to the facts of this case, we conclude that it was unnecessary for plaintiff to prove that it had a permit.
In our opinion, the court did not err in any of the respects assigned, and the judgment should be affirmed, which is accordingly so ordered.