The action is in contract to recover damages for breach of an agreement in which the plaintiff is described as Wilham Mann and Company. It is in these words.
"Buyer
William Mann & Co.
88 Broad St., Boston, Mass.
Contract No. 1090 Date April 13th, 1921.
As Brokers we have this day consummated the following transactions between the given parties.
Seller Franco American Union of New England, Box 41 Washington Square, Worcester.
Buyer Messrs. Wm. Mann & Company, 88 Broad St., Boston, Mass.
Merchandise Bordeau Walnut Halvés.
Quality 1920 crop — Mark ‘ Wilman’
Quantity 200 (55# cases) — packed in tins and cased separately.
Price .34c per lb. duty paid Boston.
Terms Net on arrival — subject to inspection.
Shipment Prompt from France.
Brokerage To be paid by Seller.
Buyer has option on 5,000 c/s until arrival and examina
This. . . . Contract. ... is made in triplicate one copy sent to the Buyer, one to the Seller, and one retained in this office
Accepted Seller.
F. W. Payne — Franco Amer. Union, (signed) Wm. Mann & Co.
Accepted Buyer
Wm. Mann & Co. per Lutz.
This Sale not Subject to Cancellation (written in ink in margin)
Journal of Commerce this date quotes Paris francs 7.04 7.01”
The contract was prepared and executed in the plaintiff’s office, and at the same time there was delivered by the plaintiff to the defendant a memorandum of the same transaction signed by the plaintiff of the following tenor.
“Franco American Union Ship to William Mann & Co.
At Boston, Mass., 88 Broad St. Salesman Payne Terms arrival draft
200 55# sealed tins Bordeaux walnut meats
1920 crop .34
each tin crated separately
duty paid
Ex dock Boston
arrival draft subject to inspection
option on 5,000 c/s until arrival and examination on above shipment subject to fluctuation on rate of exchange cable and Marking address ‘Wilman’
Wm. Mann & Co. Lutz ”
The jury could find that the contract had been broken by the seller entitling the plaintiff to damages, and the question at the trial was. whether the contract was the contract of the defendant alleged in the amended writ as doing business under the firm name and style of Franco-American Union of New England, or whether it was the contract of the Franco-American Union of New York, a New York corporation,
While there was evidence that the Franco-American Union of New York did business in Massachusetts, it was not conducted under its true name, but in the name of the Franco-American Union of New England, without filing a business certificate as provided in G. L. c. 110, § 5. It was material therefore for the plaintiff to show that at the date of the contract the Franco-American Union of New England had no legal existence as a corporation. If this appeared, the defendant on the record could be held as principal. Brigham v. Herrick, 173 Mass. 460, 466. The certificate of the Secretary of the Commonwealth and copy of the charter showing that the Franco-American Union of New England was not incorporated until May 2, 1921, accordingly were competent. See G. L. c. 9; § 11, c. 156, § 4; c. 233, § 74. American Steel & Wire Co. v. Bearse, 194 Mass. 596.
Exceptions overruled.