
    Tallapoosa Lumber Company, Respondent, v. William P. Holbert and Joseph G. Holbert, Appellants.
    
      Foreign corporation — failure to obtain permission to do business in this State — where sales are made by an agent subject to approval at the home office the corporation does not “ do business in this State ” — effect of the failure of both pan'ties to request to go to the jury.
    
    Ad action was brought upon a promissory note by an Alabama corporation which had not obtained from the Secretary of State of the State of New York a certificate that it had complied with all the requirements of law to authorize it to do business in this State. The note in question was made, was payable, and was delivered in this State to a traveling agent of the plaintiff, who took orders for the purchase of plaintiff’s merchandise, which were subject to approval by the home office of the plaintiff in Alabama and did not become effectual until the sale was approved there.
    On the trial, at the close of the evidence, the defendant moved for a nonsuit and the plaintiff asked that the court direct a verdict in its favor, which the court did; neither party requested to go to the jury.
    
      Held, that, under such circumstances, if there was any evidence sufficient to sustain any finding of fact necessary to support the j udgment, such finding was conclusive upon an appeal;
    That the note in question might, perhaps, be said to be a contract made in this State, but that it was not a contract made by the plaintiff in this State, for the reason that, while the maker and indorser agreed to pay the note, the plaintiff, as payee, did not agree to do anything;
    That if, however, it was a contract made in this State, it could not be said that the foreign corporation was ‘ ‘ doing business ” in this State within the meaning of section 15 of chapter 563 of the Laws of 1890, as amended by chapter 687 of the Laws of 1892, prohibiting any foreign stock corporation doiug business in this Stale, which has not obtained from the Secretary of State a certificate that it has complied with all the requirements of law to authorize it to do business in this State, from maintaining an action in this State to enforce any contract made by it in this State until it has procured such certificate;
    That, as the plaintiff had no office or place of business in this State, the mere fact that its agent took orders here, which did not become binding until they were approved by the corporation in the foreign State, could not be said to place the corporation in the position of “doing business in this State,” within the meaning and prohibition of the statute.
    Appeal by tlie defendants, William P. Holbert and another, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Broome on the 15th day of November, 1895, upon the verdict of a jury directed by the court after a trial at the Broome Circuit, and also from an order entered in said clerk’s office on the ldth day of November, 1895, denying the defendants’ motion for a new trial made upon the minutes.
    Lyon, Painter & Hinman, for the appellants.
    
      C. S. Nisbet, for the respondent.
   Herrick, J. :

This is an appeal from a judgment entered upon the verdict of a jury, rendered by the direction of the court in favor of the plaintiff and against the defendants.

The complaint is upon a promissory note, alleged to have been made by the defendant William P. Holbert and indorsed by the defendant Joseph G. Holbert and delivered to the plaintiff.

One of the defenses asserted in the answer, and apparently the only one relied on upon the trial and upon this appeal, is that the plaintiff is a foreign corporation, and has not procured the certificate required by law to enable it to transact business in this State, and, therefore, has no right to maintain any action in this State upon any contract made by it in this State.

Upon the trial it appeared that the plaintiff is a corporation duly organized and existing under the laws of the State of Alabama; that it has no office or place of business within this State. The note in question was given in partial settlement of an account for lumber sold by the plaintiff to the defendant William P. Holbert. These sales of lumber were made by a traveling agent who called upon the defendant William P. Holbert from time to time and solicited orders from him for lumber. These orders were sent to Alabama by the agent; subsequently the defendant Holbert would receive the lumber.

It appeared from the testimony of the agent sworn upon the trial that these orders were all subject to approval by the home office of the plaintiff in Alabama.

At the close of the evidence the defendants moved for a nonsuit, and the plaintiff asked that the court direct a verdict in its favor. The motion for a nonsuit was denied, and the court directed a verdict for the plaintiff for the amount of the note, with interest. Neither party requested to go to the jury upon any question of fact. By these motions the parties submitted all contested questions of fact to the court. Under such circumstances, if there was any evidence to sustain any finding of fact necessary to support the judgment, such finding is conclusive upon appeal. (B. S. Co. v. M. C. R. Co., 134 N. Y. 15; Daly v. Wise, 132 id. 306; Kirtz v. Peck, 113 id. 222.)

Section 15 of chapter 563 of the Laws of 1890, as amended by chapter 687 of the Laws of 1892, reads as follows: “ Uo foreign stock corporation other than a monied corporation shall do business in this State without having first procured from the Secretary of State a certificate that it has complied with all the requirements of law to authorize it to do business in this State, and that the business of the corporation to be carried on in this State is such as may be lawfully carried on by a corporation incorporated under the laws of this State for such or similar business, or, if more than one kind of business, by two or more corporations so incorporated for such kinds of business respectively. The Secretary of State shall deliver such certificate to every such corporation so complying with the requirements of law. Uo such corporation now doing business in this jétate shall do business herein after December 31, 1892, without having procured such certificate from the Secretary of State, but any lawful contract previously made by the corporation may be performed and enforced within the State subsequent to such date. Uo foreign stock corporation doing business in this State without such certificate shall maintain any action in this State upon any contract made by it in this State until it shall have procured such certificate.”

The note in question was executed in this State, made payable in this State, and delivered to the plaintiff’s agent in this State; so that perhaps it may be said to be a contract made in this State, but it is not a contract made by the plaintiff in this State ; it is an unilateral contract by which the maker and indorser agreed to do something, to wit, pay the amount specified in the note, but the plaintiff made no agreement on its part.

But assuming that it was a party to the note, and that, therefore, it was a contract made by it in this State, still that does not bring it within the statute, unless it was doing business in this State.

The contract, for the partial settlement of which the note was given, was not a contract made in this State ; while the order was taken here, it was transmitted to Alabama and ivas accepted in Alabama, and did not until that time become effectual.

The procuring of orders for goods by commercial agents traveling in this State, which orders have to be transmitted to the home office in another State for approval there, and then the goods shipped from the home place of business to the purchaser in this State, where the foreign corporation has no office or place of business, does not, I think, constitute “ doing business in this State ” within the meaning of the statute. (Murphy Varnish Co. v. Connell, 10 Misc. Rep. 553; Novelty Manufacturing Co. v. Connell, 88 Hun, 251.)

The judgment appealed from should, therefore, be affirmed, with costs.

All concurred, except Parker, P. J., not sitting.

.Judgment affirmed, with costs.  