
    Jahial Smith v. Weed Sewing Machine Company.
    1. A foreign corporation suing in the courts of this state, is not required to set out in the petition the terms of its charter showing its capacity to maintain the action.
    
      2. Under a plea of payment, in a suit on an account, the objection can not be made that the goods, for the price of which the suit is brought, were wrongfully obtained, and are, therefore, not properly the subject-matter of an account.
    3. A defendant is not entitled to recover damages arising from the breach of an express contract, under a plea of set-off for money had and received by the plaintiff to the defendant’s use.
    4. On the breach of a contract, where no actual damages are proved, the failure of the court to allow nominal damages constitutes no ground for reversal, on error, if such failure does not affect the question of costs.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Hancock county.
    The original petition was filed in the Court of Common Pleas, by the Weed Sewing Machine Company, against Smith, the plaintiff' in error, on an account, under section 122 of the code.
    The petition averred that the plaintiff was a corporation, duly incorporated under the laws of the State of Connecticut ; and set forth a cause of action founded upon an account, as authorized by the section of the code above referred to.
    The defendant demurred to the petition on the grounds:
    1. That the plaintiff had not a legal capacity to. sue. ■
    
      2. That the petition did not contain facts sufficient to show a cause of action.
    The demurrer was overruled.
    In the account sued on were six items, each consisting of a charge against the defendant for the price of a sewing machine.
    The defendant, in his answer, denied some of the items of the account other than those last mentioned; and as to all not denied he set up the plea of payment.
    He also pleaded, by way of set-off, that the plaintiff was indebted to him in the sum of $210, for commissions on six sewing machines at $35 each, received by the plaintiff for the use of the defendant; which sum, so alleged to be due, he asked to have set-off against any claim that might, om the trial, be found in favor of the plaintiff.
    The plaintiff filed a reply traversing the averments of the ■answer as to payment and set-off.
    A jury was waived by the parties, and the issues submitted to the court for trial. There was a special finding by the court of its conclusions of fact and of law separately.
    Erom this special finding, it appears that an agreement was entered into between the parties, in writing, by which it was stipulated, among. other things, as follows : “ It is ■agreed- that all consignments of sewing machines which the Weed Sewing Machine Company, a corporation duly established by law at Hartford, Connecticut, having a place of business and doing business at Toledo, Ohio, consignor, shall choose to make to J. H. Smith, of Eindley, county of Hancock, Ohio, consignee, shall be upon the terms and conditions following : ” Here follows, in detail, the stipula-' tions as to the rights and duties of the respective parties. And, among other stipulations, are the following: “ Said consignor will not knowingly supply any party with sewing machines tobe sold within .Hancock county, Ohio, while said consignee shall continue said business, and perform this contract to the reasonable satisfaction of said consignor. Said machines shall at all times continue to be the property of the consignor, and be deemed and held to be in its possession, and may be sold and disposed of by the consignee under the written or printed instructions of the consignor, and not otherwise.”
    The agreement also makes provision for the commissions to which the defendant was entitled on his sales.
    It appears, from the findings, that a controversy having arisen between the parties, the defendant below, Smith, attempted to purchase of the company the six machines charged against him in the account sued on ; but the parties not agreeing as to the price, he failed to consummate the purchase. The company demanded of Smitli the machines, which he refused to return. The company then terminated the agency, and chai’ged him in his account with the pi’ice of the machines, and instituted the original suit.
    The court also found, in substance, that during the continuance of the agency of Smith, the company knowingly furnished to one of its agents in Putnam county, five machines to be sold in Hancock county, to citizens thereof, at the minimum price at which such machines were supplied to agents, and that said machines were accordingly sold in Hancock county, which sales were made without the knowledge or consent of Smith. But there was no finding of any damages sustained by Smith on account of said sales; nor that the company realized any profits therefrom.
    Upon the foregoing facts, the court found the plaintiff entitled to recover’, on the account set fox’th in the petition, the value of the six machines chax’ged against him; and that there was nothing due to the defendant by reason of the matters in the answer set forth for commissions on the five machines so sold by the plaintiff in Hancock county.
    Judgment was rendered for the plaintiff, in accordance with these findings.
    On error the District Court affirmed the judgment.
    It is now sought to obtain the reversal of these judgments.
    
      
      Whiteley Blackford, for the motion.
    
      Charles Pratt, contra.
   White, J.

The first error alleged arises on the overruling of the demurrer to the petition.

Although two grounds are stated for the demurrer, yet no defect is claimed to exist in the petition other than its failure to show legal capacity in the plaintiff to maintain the action.

At common law, a corporation, when it sues, need not set forth its title in the declaration; but if issue be taken, it must show, by evidence upon the trial, that it is a body corporate, having legal authority to make the contract which it seeks to enforce, if the action be upon contract, or to sue in that character and capacity in which it appears in court. Bank of Michigan v. Williams, 5 Wend. 482.

In Lewis v. The Bank of Kentucky, 12 Ohio, 151, the rule is laid down, that, in suits brought by corporations of our own state, the court will take judicial notice of their capacity to sue; while those claiming to be foreign corporations must prove their corporate character under the general issue.

But if no issue were taken, their capacity to sue would, of course, be admitted.

Under the code, in order to raise the question on demurrer, the incapacity must appear on the petition. If it does not so appear, the objection may be made by answer, and if not so taken, the objection is waived.

The code does not require the title of the plaintiff to sue to be more specifically set out than was required at common law. The demurrer was therefore properly overruled.

The second ground of error is that the items in the account, charging the defendant with the price of the six sewing-machines, were not proper subjects of account; that the articles were not, in fact, sold by the plaintiff to the defendant.

But under the state of the pleading, this objection can not avail. The only defense set up against these charges* was the plea of payment. This plea admits the sale and' delivery of the articles.

The remaining ground of error is that nothing was allowed to the defendant under his plea of set-off as commission on account of the machines sold by the plaintiff in Hancock county.

The claim set up in the plea is for money had and received by the plaintiff for the defendant’s use. Under this plea, defendant was not entitled to recover damages arising from the breach of an express contract. Proofs of such damages would not support the plea. Nor was he entitled to commissions on such sales, for the reason that the sales were neither made by him, nor under the contract.

That the making of the sales by the plaintiff, during the' continuance of the agency, was in violation of the agreement, we do not doubt. But no actual damages were-proved, and tbe failure of the court to allow nominal damages, which would not affect the costs, constitutes no grounds for reversal.

Had it been shown that the plaintiff realized profits from the sales, such profits might, perhaps, have been recoverable by the defendant as damages, in analogy to the rule adopted in patent-right and trade-mark cases. Graham v. Plate, 40 Cal. 593. But, as already remarked, there was no -foundation laid for such recovery in the pleadings or proofs.

Leave refused.

Welch, C. J., Rex, Gilmore, and McIlvaine, JJ., concurred.  