doing of business in the State without filing proper instruments and provides penalties for violation of the law. Sec. 100 and Secs. 2101a to 2101f, Rev. Code, 1915 (Art. 11, Corp. Law.) There is no express provision with respect to the validity of contracts or the maintenance of suits upon them by non-complying corporations.

In Model Heating Co. v. Magarity, 25 Del. 459, the Supreme Court of Delaware for the first time considered the enforceability of contracts in the State courts which were made by unqualified foreign corporations. The plaintiff here was a Pennsylvania corporation; the defendant retained all the benefits of the contract but pleaded that the plaintiff could not sue upon it because it had not complied with the Delaware statute. After an elaborate review of the authorities on the question, the Court held that the consitutional provision was not self-executing and that its main purpose, as well as that of the statutes, was to make foreign corporations subject to process from the State courts and not to make their contracts void; and that as the defendant retained the benefits of the contract, it could be enforced against him.

Florida.

It was formerly provided in Florida that a contract entered into by a foreign corporation affecting its liability

8 See Magarity case discussed in Strout v. Howell, 27 Del. 31.

The attention of the court in the Magarity case was apparently not called to the retaliatory provision contained in Section 110, Revised Code, 1915 (Sec. 73, Franchise Tax Law).

It is to be noted that the corporation plaintiff in the Magarity case was a Pennsylvania corporation and that at the time the Magarity suit was begun in the court below, in the June Term of 1908, the Pennsylvania statute then in force was interpreted to render a contract by a non-complying foreign corporation in Pennsylvania wholly void. See infra, under Pennsylvania.

The courts of New Jersey, in considering an identical retaliatory provision of the New Jersey Corporation Act (Sec. 101) held that a Pennsylvania corporation could maintain no suit in the New Jersey courts on a contract entered into before qualifying under the New Jersey Law. Wolf v. Lancaster, 70 N. J. L. 201, see infra, under New Jersey.

Before the decision of the Magarity case, which was three years after the institution of the suit in the lower court, the Pennsylvania Act was repealed and a new act passed expressly providing that failure to qualify should not affect the validity of a contract. Laws of 1911, p.

or relating to property within the State before it shall have complied with the Foreign Corporation Act should be void. Ch. 5717 of the Laws of Florida, Sec. 4 (Sec. 2682d Comp. Laws, 1914). This statute was given effect in Ulmer v. First Natl. Bank, 61 Fla. 460. The last legislature, however, amended the above provision to read as follows:

"Section 4. That the failure of any such foreign corporation to comply with the provisions of this act shall not affect the validity of any contract with such foreign corporation, but no action shall be maintained or recovery had in any of the courts of this State by any such corporation, or its successors or assigns, so long as such foreign corporation fails to comply with the provisions of this Act." Laws of 1915, Ch. 6876.

Under the present provision, therefore, failure to comply with the law merely suspends the right to maintain an action in the courts of the State; and, as held by the Supreme Court of Maryland (see infra), under a similar provision, the corporation could qualify any time before the trial of an action. It would also follow that, as in the case of the New York statute hereinafter referred to, a suit could be maintained in the Federal courts, even though the corporation could not sue in the State courts.

Georgia.

This State has no statutory provisions with respect to the obtaining of authority to do business by foreign corporations. Annual fees are required, however, to be paid by foreign corporations doing business in the State, just as domestic corporations, but there are no provisions affecting contract rights in case of failure to pay the fees.

710. But it would seem that if the Delaware Court had considered the effect of the retaliatory provision above noted, it would have retaliated against a Pennsylvania corporation on the basis of the Pennsylvania law as it existed at the time of the institution of the cause in the lower court.

9 Under this statute, it was held in Turner Const. Co. v. Union Terminal Co., 229 Fed. Rep. 702, that,

while a contract entered into by an unqualified corporation was void, yet if the corporation complied subsequently, the parties to the contract could by their actions in respect to said contract, adopt it as expressing their obligations. See under Alabama, supra. A petition for a writ of certiorari has been made to the Supreme Court of the United States to review this case.

Idaho.

The statutes of this State provide as follows:

"No contract or agreement made in the name of, or for the use or benefit of, such corporation prior to the making of such filings, as herein provided, can be sued upon or enforced in any court of this State by such corporation. Such corporation cannot take or hold title to any realty within this State prior to making such filings, and any pretended deed or conveyance of real estate to such corporation prior to such filings shall be absolutely null and void." Sec. 2792, Rev. Code, as amended by Ch. 124, Laws of 1915.

The same section also provides for a personal liability on contracts entered into by the officers, agents or representatives making the same in the name of the foreign corporation; and denies the benefit of the statute of limitations to corporations in default. The courts of Idaho give full effect to this provision and deny the right of foreign corporations to sue on contracts entered into before complying with the law, unless the question is waived. Katz v. Herrick, 12 Ida. 1; Valley Lumber Co. v. Driessel, 13 Ida. 662; same v. Nickerson, 13 Ida. 682; Tarr v. Western Loan & S. Co., 15 Ida. 741; Morris-Roberts Co. v. Mariner, 24 Ida. 788. See also Junction Placer Mining Co. v. Reed, 153 Pac. 564. The effect of the Idaho statute, however, is not to make such contracts void but merely to make them unenforceable in the courts of Idaho. They may therefore be enforced in the courts of other jurisdictions, including the Federal courts. Colby v. Cleaver, 169 Fed. Rep. 206; Continental, etc., Bank v. Corey Brothers Construction Co., 208 Fed. Rep. 976. As will be hereinafter noted, this decision is in accord with those based upon a construction of the New York statute.

Illinois.

The statutes of Illinois provide a penalty for doing business without complying with the provisions of the statute, and also as follows:

"In addition to such penalty, if after this act shall take effect, any foreign corporation shall fail to comply herewith, no suit may be maintained, either at law or in equity, upon any claim, legal or equitable, whether arising out of contract or tort in any court in this State." Sec.

67g, Ch. 32, Kerr's Rev. Stat., 1913. (Sec. 2531 Jones & Addington's Stat. 1913.)

The construction placed upon this provision by the Supreme Court of Illinois is that such contracts are wholly void as to the foreign corporation. In United Lead Co. v. Elevator Mfg. Co., 22 Ill. 199, 202, the Court said:

"The contract upon which this suit was brought, having been entered into in this State, when appellants were not permitted to transact business in this State, is in violation of the plain provisions of the statute, and is therefore null and void, and no action can be maintained thereon at any time, even if the corporation should at some time after the making of the contract, qualify itself to transact business in this State by a compliance with our laws in reference to foreign corporations that desire to engage in business here."

It would follow from the above decision that the corporation could maintain no 'suit on such a contract in any other jurisdiction.1o See under Wisconsin, infra.

Indiana.

The statutes of this State require a foreign corporation to file a certified copy of its articles of incorporation, together with a statement as to certain facts. Sec. 4086 Burns' Stat. A penalty is provided for violation, and also the

following:

"In addition to such penalty, if after this act shall take effect any foreign corporation shall fail to comply herewith, no suit may be maintained either at law or in equity upon any claim, legal or equitable, whether rising out of contract or tort, in any court in this State." Sec. 4086 Burns' Stat.

10 In Meader Furniture Co. v. Commercial Nat. S. D. Co., 192 Fed. Rep. 616, the circuit court sitting in Ohio disagreed with the holding of the Supreme Court of Illinois on this point and held a contract made in Illinois by a foreign corporation, which had not complied with the Illinois act, valid and enforceable in the Federal courts.

The Court points out, however, that the contract under consideration had been entered into before the Supreme Court of Illinois had construed the language of the act then in force, which is substan

tially similar to the act quoted above; and for that reason, the Federal court considered itself entitled to examine the question as res nova. Also, in Vitagraph Co. of America v. Optiscope Co., 157 Fed. Rep. 699, the Court held that the Illinois statute did not invalidate contracts.

As to contracts entered into subsequent to the construction of the act by the Supreme Court of Illinois, the Federal courts would be bound by the decisions of that court. (See cases cited under Note 2, supra.)

The above provision is almost identical with those in Illinois and Missouri where they are construed by the courts to render contracts wholly void. Under earlier statutes of Indiana containing similar provisions and imposing penalties as to insurance companies, the courts of Indiana held contracts made by such corporations wholly void, for the reason that they were entered into in violation of law. Wood Mowing Co. v. Caldwell, 54 Ind. 270, 273. The principle of the case last cited would determine that contracts entered into in violation of Section 4086 of the present statutes are wholly void."

Iowa.

The Iowa statute requires a foreign corporation to procure a permit to do business in the State. Sec. 1637 Code Supp., 1913. Penalties are provided for transacting business without compliance. Sec. 1639 Code. It is also provided as follows:

"No foreign corporation which has not in good faith complied with the provisions of this chapter and taken out a permit shall possess the right to exercise the power of eminent domain, or exercise any of the rights and privileges conferred upon corporations, until it has so complied herewith and taken out such permit." Sec. 1638 Code.

The holding of the Supreme Court in Iowa is substantially similar to that prevailing in Delaware. It is held that a defendant sued on a contract made with a foreign corporation, the benefits of which the defendant retains, cannot take advantage of the fact that the corporation has

11 The above statutory provisions must be distinguished from those of the Act of 1852 (now Sec. 4099 Burns' Stat., probably repealed by Sec. 4098, id.), providing that an agent must file an instrument of his authority with the clerk of the circuit court of the county where the corporation proposes to do business. For failure of the agent to file this authority, it is provided:

"Such foreign corporation shall not enforce, in any court of this State, any contracts made by their agents or by persons assuming to

act as their agents, before a compliance by such agents or persons acting as such with the provisions of sections 1 and 2 of this act." Sec. 4101 Burns' Stat.

Under this act, it had been held that failure to comply did not make contracts invalid but merely suspended the right of action until such compliance. North Mercer Co. v. Smith, 27 Ind. App. 472; Security Savings & Loan Assn. v. Elbert, 153 Ind. 198; Domestic Sewing Machine Co. v. Hatfield, 58 Ind. 187; Sullivan v. Beck, 79 Fed. Rep. 200