T. H. Rogers Lumber Co. v. McRea

(after stating the facts as above). The only question presented for our consideration is whether it is necessary for a foreign corporation, before it can maintain an action in this jurisdiction, to 'aver and prove compliance with the law requiring it to appoint a resident agent. This question)is one which has many,times been passed upon by the courts of the various states; and the decisions áre in direct conflict. The preponderance of numbers, however, and, to our mind, the overwhelming weight of reason and soundness of principle, is in favor of the doctrine that the presumption of compliance with the law applies to this as well as to other questions; and a corporation need not aver, and especially where' the question is not raised by the answer, need not prove, compliance with a statute requiring it to appoint a resident agent. Acme Merc. Co. vs Rockford, 10 S. D. 203, 72 N. W. 466, 66 Am. St. Rep. 714; Lehigh Valley Coal Co. vs Gilmore, 93 Minn. 432, 101 N. W. 796, 106 Am. St. Rep. 443; M. L. L. & I. Co. vs Gordon, 113 Iowa, 481, 85 N. W. 816; Amer. Ins. Co. vs Cutler, 36 Mich. 261; Parlin Co. vs Boatman, 84 Mo. App. 67; Amer. Ins. Co. vs Smith, 73 Mo. 368; Zion Coop. Assn. vs Mayo, 22 Mont. 100, 55 Pac. 915; North. Assur. Co. vs Borgelt, 67 Neb. 282, 93 N. W. 226.

Mr. Thompson in his Commentaries on the Law of Corporations, vol. 6, § 7965, says: “Judicial authority is likewise divided upon the question whether it is necessary, in an action by a foreign corporation to enforce a contract made in the domestic state, to aver and prove compliance on its part with the statutes' of the state entitling it to do business therein. We have elsewhere seen that the general presumption of right acting applies to corporations, both domestic and foreign, and that it will be presumed that a given act was within the powers of the corporation until the contrary appears. We have also met with cases which hold that it is a presumption, in the absence of evidence to the contrary, that a foreign corporation, *471suing to enforce a contract made in the domestic jurisdiction, has complied with the local laws which entitle it to make that contract. 'If these principles are sound, then it must follow as a necessary conclusion to be adduced from them that the foreign corporation need not aver and prove, in the first instance, in order to maintain an action upon a contract made within the domestic state, that it had complied with the domestic law entitling it to do business within the state, and to make that contract. But Ave find decisions directly to the contrary, which proceed upon the principle that compliance with the local statute is a condition precedent to the right to maintain an action in the local courts which like other conditions precedent must be averred and proved by the plaintiff as the foundation of its right of action. These holdings are unphilosophical and contrary to the analogies of good pleading. * * * The best opinion therefore is that, in an action by a foreign corporation to enforce a domestic contract, it is not only not necessary for the corporation to aver and prove in the first instance its compliance Avith the domestic statutes entitling it to do business Avithin the domestic state, but that unless the defendant makes an averment of noncompliance in distinct terms, he cannot introduce evidence to show that such was the fact.” .

The act of Congress of February 18, 1901, 31 Stat. 794, c. 379, provides: “That before any foreign corporation shall begin to carry on business in the Indian Territory, it shall, by its certificate, * * * designate an agent, who shall reside where the United States Court of Appeals in the Indian Territory is held, upon whom service of summons and other process may be made.” It is presumption of the law that all persons and corporations act in accordance with law, and have legal capacity to sue. Elliott on Evidence, vol. 3, § 1585. Section 5062, Mans. Dig. (Incl.' Ter. Ann. St. 1899, § 3267), provides: “Neither presumption of law. nor matter of *472which judicial notice is taken need be stated in a pleading.”

The court, therefore, erred in instructing the jury to return a verdict for the defendant.

Reversed and remanded.