
    ABEEL v. WEIL.
    (Nos. 660-4537.)
    
    (Commission of Appeals of Texas, Section B.
    May 12, 1926.)
    1. Evidence ¡@=3474(14) — Witness held net qualified to give opinion that signature was that of deceased, where he was not familiar with deceased’s signature.
    Witness lteld not qualified to express an opinion that signature to lease contract was that of deceased, where he was not acquainted with signature or handwriting of deceased.
    2. Evidence <@=>370(4) — Plaintiff, in suit to recover rentals under ¡ease contract, in which neither of parties to suit were parties to lease, was required to prove its execution by both parties thereto.
    In assignee’s suit against stockholder in corporate lessee to recover rentals under lease contract, which proof of lease being an essential part of plaintiff’s case, and neither of parties to suit being parties to lease, plaintiff, before being entitled to have lease contract admitted in evidence, was required to prove its execution by both parties thereto according to rules of common law.
    3. Evidence <@=34981/2 — Acquaintance of witness, who testifies as to genuineness of signature of another, must be proven.
    ■ Acquaintance of .witness with signature, which he testifies in his opinion is genuine signature of another, is not presumed, but must 'be shown by evidence.
    4. Evidence <@=>49&i/2.
    Burden of showing that witness is qualified to express his opinion as to genuineness of signature of another is on party offering his testimony.
    5. Evidence <@=>587.
    Execution of a written instrument may be established by circumstances.
    6. Appeal and error <@=3(051 (!) — Error in admitting lease, in that proper execution was not shown, held harmless, where lessee accepted lease and paid rentals.
    In suit by assignee to recover rentals under lease contract, error in admitting lease, in that proper execution thereof was not shown, held harmless, where lessee accepted lease, went into possession of property, and paid for use to original lessor, as well as to assignee.
    7. Pleading <@=3294 (2) — Assignment of lease held admissible without proof of its execution, where plaintiff specifically pleaded assignment to himself and ownership thereof, and there was no plea of non est factum or denial by defendant under oath (Rev. St. 1925, art. 573 [Rev. St. 1911, art. 588]R
    In suit by assignee to recover rentals under lease, in which plaintiff specifically pleaded assignment of claim for rentals to himself and his ownership thereof, and there was no plea of non est factum or denial, by defendant under oath, assignment held admissible, in view of Rev. St. 1925, art. 573 (Rev. St. 1911, art. 588), without proof of its execution by assignor.
    
      8. Pleading @=>291 (2) — Instrument, constituting basis of plaintiff’s claim, is admissible without proof of its execution; but, if instrument’s office is to prove some material fact necessary to establish claim, execution must be proved before it can be introduced in evidence (Rev. St. 1911, art. 588 [Rev. St. (925, art. 573]).
    Under Rev. St. 1911, art. 588 (Rev. St. 1925; art. 573), providing that assignment or indorsement of written instrument shall be regarded as fully proved unless defendant shall deny in his plea that same is genuine, if instrument constitutes basis of plaintiff’s claim, assignee of original party may offer it without proof of its execution; but, if its proper office is to prove some material fact necessary to establish the claim, execution of instrument must be proved before it can be legally introduced in evidence.
    9. Evidence @=>80(1).
    Laws of another state must be presumed similar to those of Texas when not otherwise proven.
    10. Statutes @=>289.
    Statutes of another state, not being within court’s judicial knowledge, must be proved, as are other foreign laws.
    11. Corporations @=>633 — Deposition of secretary of state of California as to corporation’s permit to do business and certified copy of articles of incorporation held admissible, as having some probative force on issue whether corporation was duly organized under laws' of California.
    Deposition of secretary of state of California as' to corporation’s permit to do business in California, to which was attached certified copy of articles of incorporation, held, admissible, as having some probative force on issue whether corporation was a duly organized California corporation, in view of apparent similarity of laws of two states, in absence of authenticated copies of laws relative to formation of corporations, notwithstanding that California law seemingly required that original articles of incorporation be filed in office of county clerk and ex officio clerk of superior court of some county.
    12. Evidence @=>366(5) — .Courts, in admitting in evidence copies of records of sister state duly authenticated, cannot give effect to records accorded to them by laws of sister state, unless laws are proved.
    Courts, in admitting in evidence copies of records of a. sister state duly authenticated, cannot give effect to records accorded to them by laws of sister state, unless laws are proved, for courts cannot judicially know legal effect of records -in the sister state.
    13. Corporations <©=>633 — Testimony of secretary of foreign state that permit to do business had been issued' to corporation and accompanying certified copy of articles of incorporation held not prima facie proof of corporate creation (Rev. St. 1911, art. 1131).
    Testimony of secretary of state of California that corporation had received permit to do business in that state accompanied by certified copy of articles of incorporation held not prima facie proof of creation of corporation as a private corporation, under Rev. St. 1911, art. 1131, where it affirmatively appeared that county clerk and ex officio clerk of superior court of some county in California was required to take some official action with reference to proposed corporation before filing of articles with secretary of state.
    14. Corporations @=>268(5) — Assignee of lease contract, to recover rentals of executrix of deceased stockholder in California corporation, was required to plead and prove that corporation was duly organized.under laws of California.
    In suit by assignee of lease contract to recover rentals of executrix of deceased stockholder in California corporation, plaintiff was required to allege and prove that corporation was duly organized under laws of California.
    15. Corporations @=>633 — Corporate existence of foreign corporation might be proved by pa- • rol evidence in connection with insufficient documentary evidence.
    In suit by assignee of lease contract to recover rentals of executrix of deceased stockholder in California corporation, corporate existence and character might be proven by pa-rol evidence in connection with certified copy of articles of incorporation, which, because of failure to prove Jaws of California, did not themselves constitute sufficient proof.
    16. Appeal and error @=>1047(1) — Any error in holding that testimony of secretary of state constituted prima facie proof of creation of foreign ciofiporation heldi harmless* where there was other testimony sufficient to establish corporate existence.
    In suit by assignee of lease contract to recover rentals of executrix of deceased stockholder in California corporation, any error of trial court in holding that testimony of secretary of state of California constituted prima facie proof of creation of corporation in that state was harmless, where there was other evidence sufficient to establish corporate existence.
    Certified questions from Court of Civil Appeals of Tenth Supreme Judicial District.
    Action by Charles B. Weil against Sadie ■ C. Abeel, independent executrix. Judgment for plaintiff, and defendant appeals. On certified questions from the Court of Civil Appeals.
    Questions answered.
    J. D. Williamson, of St. Louis, Mo., and Sleeper, Boynton & Kendall, of Waco, for appellant.
    Witt, Terrell & Witt, of Waco, for appel-lee.
    
      
       Rehearing denied June 23, 1926.
    
   SHORT, J.

This case has reached the Supreme Court through the medium of certified questions voluntarily presented by the Court' of Civil Appeals of the Tenth Judicial District, the certificate being as follows:

“This suit was instituted by Chas. B. Weil against Alfred Abeel to recover a personal judgment in the sum of $3,537, with interest. Alfred ■ Abeel died and his executrix and sole devisee, Mrs. Sadie O. Abeel, was made defendant in Ms stead, both in her individual and in her representative capacities. The parties will be designated as they appeared in the trial court. Plaintiff alleged that one Gustave íiach-man had theretofore by written contract leased to the Pathfinder Motor Oar Oompany, a corporation duly incorporated under the laws of the state of California, certain real property situated in the city of San Francisco in said state; that plaintiff shortly thereafter purchased said property and that said lease was transferred to him by written assignment; that the sum sued for was due as unpaid rentals under said lease; that said corporation had forfeited its charter and was insolvent and wholly without assets; that, under the Constitution and laws of the state of California, each stockholder in such corporation was liable to the respective creditors thereof in the proportion that the stock held by him bore to the entire capital stock of said-corporation; that at the time said lease contract was made said Alfred Abeel-owned 198 of a total of 404 shares of stock issued by said corporation; and that he shortly '.thereafter purchased 2001 additional shares of such stock, and held all the same continuously thereafter. Plaintiff also alleged the death of Alfred Abeel; the probate of his will appointing the defendant sole executrix and making her sole devisee of his entire estate. Plaintiff also described certain tracts of land situated in Waco, Tex., and alleged that said tracts of land were a part of the estate of said testator, and that they were held and. owned by defendant under said will as devisee therein. Plaintiff prayed for judgment establishing his demand as a just claim against the estate of Alfred Abeel, deceased, and for recovery against defendant as executrix of said will, and also in her individual capacity, and for foreclosure of lien on the property described, and for' sale of such property to satisfy such judgment.
“Defendant answered in her individual capacity. Said answer contained, among other-pleas, a general denial and a- plea that the estate of Alfred Abeel, deceased, had been fully administered and the property thereof distributed and that she did not have in her hands as executrix thereof any property belonging thereto at the time she was made a party to this suit. There was a trial before the court and judgment in favor of plaintiff establishing his demand in the sum of $2,274.63, with interest from date of judgment, as a just claim against the estate of Alfred Abeel, deceased, and awarding him a recovery for said sum against defendant in her capacity as independent executrix, and a judgment foreclosing a lien upon the property described in plaintiff’s petition. The judgment of foreclosure was general, without distinguishing between the rights of defendant as independent executrix and her individual rights as sole devisee.

“Plaintiff, on the trial of the case, for the purpose of proving the execution by said Laehman of said lease contract, offered in evidence from the deposition of his witness I. N, Johnson an interrogatory and the answer of said witness thereto as follows:

“ ‘Q. Is the- signature attached to said contract Gustave Lachman’s signature? • A. Yes; I believe it is.’
“Defendant objected to said answer on the ground that ‘said witness had not testified that he knew Gustave Laehman or was familiar with his signature, or that he had ever seen him write, or that he saw him sign the purported lease.’ The court overruled the objection and admitted said answer in evidence. Predicated solely on said answer as proof of the execution of said lease contract by said Laehman, plaintiff offered said contract in evidence. Defendant objected to its introduction on the ground that ‘the signature of Gustave Laehman thereto had not been proved nor had the execution of said instrument been properly proved.’ Said objection was overruled and the lease contract admitted in evidence.
“This court sustained appellant’s assignments complaining of the admission of the testimony of said, witness and the admission of the lease contract thereon, 'and reversed the judgment ■ of the trial court and remanded the cause. For the convenience and information of the court, we quote from our opinion in the case as follows:

“ ‘Plaintiff declared on said lease contract as the basis of his right to the rentals sued for and his right to recover of defendant’s testator or his estate as a stockholder in the Pathfinder Motor Car Company, the grantee therein. Proof of said lease was an essential part of plaintiff’s case. Neither of the parties to this suit were parties to said lease. Before plaintiff was entitled to have such lease contract admitted in evidence in this case, it was necessary to prove its execution by both parties thereto according to the rules of common law. 22 C. J. pp. 929, 980, § 1138; Lignoski v. Crooker, 86 Tex. 324, 328, 24 S. W. 278, 788; Betterton v. Echols, 85 Tex. 212, 214, 20 S. W. 63; Morris & Co. v. Southern Shoe Co., 44 Tex. Civ. App. 488, 99 S. W. 178, 179; Peterson v. Martinez & Bros., 78 S. W. 401; Sanger v. Jesse French Piano & Organ Co., 21 Tex. Civ. App. 523, 52 S. W. 621; Walker v. T. &. N. O. R. Co., 51 Tex. Civ. App. 891, 112 S. W. 430, 432, 433.

“ ‘The interrogatory under consideration inquired whether the signature appended to said lease was the genuine signature of said Laehman. Had the witness seen said Lachman sign said lease, he would have known that such signature was genuine and would doubtless have so answered. He did not so answer, but stated, in effect, that in his opinion such signature was genuine. Before a witness is qualified, or, in other words, competent, to testify to his opinion or belief that a particular signature presented to him is the genuine signature of another, such witness must be acquainted with the signature or handwriting of such other person. Such acquaintance is not presumed, but must be shown by evidence. Mapes v. Leal’s Heirs, 27 Tex. 346, 348, 349; Hanley v. Gandy, 28 Tex. 211, 213, 214, 91 Am. Dec. 315; Haynie v. State, 2 Tex. App. 168, 171; 1 Wigmore on Evidence, p. 1109, § 693, and page 1054, § 654; 11 R. C. L. p. 620, § 41; 1 Greenleaf on Evidence, 577, 22 C. J. § 1161, p. 943, and authorities cited in note 43. The burden of showing that the witness is qualified or competent is on the party offering his testimony. 1 Wigmore on Evidence, p. 1054, § 654. * * *

“ ‘The testimony offered and admitted failed to show that said witness was acquainted with the signature or handwriting of said Laehman and Ms opinion or belief as to that matter was incompetent, and the court erred in admitting it in evidence. Since the testimony so improperly admitted was the only proof of the execution by Lachman of the lease contract, it follows that the court erred in admitting the same in evidence.’
“Plaintiff has filed a motion for rehearing. He does not in said motion attack the propositions of law on which .the case was decided by the court, but he insists most strenuously that we erred in reversing and remanding the cause on account of the admission of the lease contract in evidence. The principal contention urged by him is that there is in the record in this case evidence of sufficient facts and circumstances to show prima facie that said Lach-man did execute the identical lease contract so admitted in evidence, and to meet the requirements of the law as to preliminary proof of execution as a predicate for the admission of said contract in evidence.
“The said lease is copied at'length in the statement of facts and we here make the same a part of this certificate. Said witness Johnson testified to the due execution of said contract by the Pathfinder Motor Oar Company and to his signing the bond or agreement Shown at the bottom thereof. Except as shown by such testimony and by the face of said instrument, all the facts and circumstances relied on by plaintiff to shcvy the execution thereof by said Lachman were introduced in evidence after the same had been admitted by the court on the testimony of said witness as above set out. None of such testimony is shown to have been offered on the issue of the execution of said instrument by said Lachman, and there is nothing in the record to show that (he court considered such testimony in that connection. One of the justices of this court was formerly of counsel in this case and did not participate in the consideration or disposition of the same. The other two members of the court are of the opinion that there are facts and circumstances in the evidence, considering the same as a whole, exclusive of the testimony of said witness with reference to the purported signature of Lach-man to said lease, tending to show that he did sign the same and act thereon, of sufficient probative force to have justified the trial court, in the exercise of his discretion, in holding that ■the requirements of the law as to preliminary proof of" execution of said lease as a predicate for the admission thereof in evidence had been met. We do not agree,- however, that said facts and circumstances are of sufficient probative force to establish the execution of said lease contract by Lachman as a matter of law. We therefore deem it proper to submit for your determination the following questions:
“First Question.
“Where a written instrument material to a proper determination of the issues in a case has been admitted in evidence on specific but insufficient proof of execution, may the Court of Civil Appeals look to the entire evidence in the ease and determine therefrom for itself whether the trial court, in the exercise of his discretion, would have been justified in admitting the same in evidence on the ground that there was circumstantial proof of execution of such probative force as to meet the requirements of law as to preliminary proof thereof, or whether the trial court would have been justified, in the exercise of his discretion, in overruling a motion to exclude such instrument from the evidence before the case was determined by the court or submitted to a jury?
“Second Question.
“If the Court of Civil Appeals should determine that the trial court, on a consideration of the evidence as a whole, would have been justified in admitting such written instrument in evidence on such ground, or in refusing to exclude the same from the evidence on such ground, should the Court of Civil Appeals overrule an assignment complaining of the admission of such written instrument in evidence on such insufficient proof of execution and refuse to reverse the case thereon on the ground that such action of the court constituted harmless error, notwithstanding no such issue was considered or passed upon by the trial court, and notwithstanding the trial court might in the exercise of his discretion have refused to admit such instrument in evidence?
“Defendant presented in her brief other assignments which she insisted required a reversal- of the judgment of the trial court. Several of such assignments complain of the admission of evidence. We did not pass upon the same in our original opinion because the judgment of the trial court was reversed and the cause re-' manded for* another trial, and the objections urged to such evidence could be met by additional proof. Should it be held that the, case should not be reversed on account of the admission in evidence of the lease contract, these assignments should be considered and acted upon.- Even if the case is finally reversed, action on said assignments might prevent another reversal.
“There was indorsed upon the back of the lease contract introduced in evidence a written assignment of the same to appellee, Ohas. B. Weil. This assignment purported to be signed by said Lachman. ' It was not acknowledged. There was no attempt to prove that the signature thereto was genuine. Appellant objected to the introduction of said assignment in evidence because there was no proof of the handwriting of the man who signed the same and no proof whatever of the execution of the same. The court overruled said objection and admitted the assignment in evidence without proof of execution. Appellant submits in this connection the following proposition: ■
“ ‘When .plaintiff claims ownership of a lease by written assignment from another and bases his cause of action on his ownership of such-lease as against defendant, who was not a party to the lease or the assignment thereof, such assignment of the lease is not admissible in evidence .until the execution thereof by plaintiff’s assignor is duly proven 'by competent evidence.’
“Appellee contends that said assignment .was admissible without proof of execution, under and by virtue of the terms of article 588 of the Revised Statutes of 1911. Said article read as follows:
“ ‘When a suit shall be instituted by an as-signee or indorsee of any written instrument,, the assignment or indorsement thereof shall be regarded as fully proved, unless the defendant shall deny in his plea that the same is genuine, and moreover shall file, with the papers in the cause, an affidavit stating that • he has good cause to believe, and verily does believe, that such assignment or indorsement is forged.’
“Our Supreme Court, in Schauer & Co. v. Beitel’s Executor, 92 Tex. 601, 603, 50 S. W. 931, said, in substance, that said article prescribed the proceeding by which the title of an assignee or indorsee might be put in issue by the maker when sued upon a written instrument. The court of Civil Appeals for the Fourth District, in Carpenter v. Historical Publishing Co., 24 S. W. 685, 686, in discussing this 1 article of the statute, said, in< substance, that it applied only to written instruments emanating from the defendants, and that only with respect to such instruments was proof of an assignment or indorsement dispensed with. The Court of Civil Appeals for the Fifth District, in the case cf. Commonwealth Nat. Bank v. Hawes, 196 S. W. 859, 860, in discussing this article, said:
“ ‘It is clear, we believe, that the statute invoked is without application in this proceeding. Obviously it has reference to instruments or obligations emanating from the party sought to be charged.’
“The Court of Civil Appeals for the Fifth District, however, in the cáse of McCormick v. National Bank of Commerce, 106 S. W. 747, 750, held that a written assignment indorsed on an approved claim against the estate of a decedent, such claim being based on adjudgment recovered against said decedent in his lifetime, was admissible in evidence, under and by virtue of said article, without proof of execution. The Supreme Court, in McCormick v. Rainey, 101 Tex. 320, 322, 107 S. W. 45, held that there was no decided conflict between Carpenter v. Historical Publishing Co., supra, and McCormick v. National Bank of Commerce, supra, and, in addition to so holding, said:
“ ‘Indeed, it is a serious question whether the decision relied upon to show a conflict and the decision of the present case are not both correct.’ \
“In view of this state of the authorities, we deem it expedient to certify for your determination the following question:
“Third Question.
“Was the purported assignment of said lease contract from Lachman to appellee admissible in evidence in this case under and by virtue of the provisions of said article, without any proof of its 'execution by said Lachman ?
“Plaintiff, for the purpose of proving the due incorporation of the Pathfinder Motor Car Company, offered in evidence a certified copy of articles of incorporation. Said certified copy and the several certificates thereto are made a part hereof. These articles of incorporation purport to have been duly acknowledged by the incorporators before a notary public. Immediately following the acknowledgment of sai'd articles by said incorporators appears the following:.
“ ‘State of California, County of Los Angeles—
ss.: • No. 14134.
“ T, H. J. Lelande, county clerk and ex officio clerk of the superior court, do hereby certify the foregoing to be a full, true, and correct copy of the original articles of incorporation of Pathfinder Motor Car Company on file in my office, and that I have carefully compared the same with the original.
“ ‘In witness whereof, I have hereunto set my hand and affixed the seal qf the superior court this 19th day of April, 1912. '
“ ‘H. J. Lelande, County Clerk,
“ ‘[Seal] By C. C. Crippen, Deputy Clerk.’
“Indorsed:
“ ‘Filed April 19, 1912.
“ ‘H. J. Lelande, Clerk,
“ ‘By C. C. Crippen, Deputy.’
“Indorsed:
“ ‘Filed in the office of the Secretary of State the 29th day of April, A. D. 1912.
“ ‘Frank C. Jordan, Secretary of State,
“ ‘By Frank H. Cory, Deputy.
“ ‘Record Book 282, page 152.’
“There was attached to and preceding said purported articles of incorporation the following additional certificate:
“ ‘State of California, Department of State.
“ T, Frank O. Jordan, secretary of state of the state of California, do hereby certify that I have carefully compared the annexed copy of articles of incorporation of Pathfinder Motor.Car Company with the certified copy of the original now on file in my office, and that the same is a correct transcript therefrom, and of the wholes thereof. I further certify that this authentication is in due form and by the proper officer.
“ ‘In witness whereof, I have hereunto set my hand and have caused the great seal of the state of California to be affixed hereto this 21st day of November, A. D. 1916.
“ ‘[Great Seal of the State .of California.]
“ ‘Frank C. Jordan, Secretary of State.
“ ‘Frank H. Cory, Deputy.’
“In connection therewith, plaintiff offered in evidence from the deposition of Frank C. Jordan, secretary of state, the following interroga-, tory and answer thereto:
“ ‘If in answer to the preceding interrogatory you have stated that there is such a record (that is a record showing the names of various corporations organized under the laws of California that have permits or that have had permits to do business in California), then state whether or not there was a corporation in California with a permit to do business by the name of Pathfinder Motor Car Company, and if you say there was such, please attach to your answer hereto a certified copy of said corporation, together with the certificate showing when said charter was filed in your office and a certificate showing the condition of said corporation as to payment of its franchise fees up to the 1st of August, 1915.’
“Answer: ‘Such record shows that a corporation by the name of Pathfinder Motor Car Company once had what might be called a permit to do business in California, and a certified copy of the articles of incorporation of this corporation, and a certificate as to its incorporation and a forfeiture of its charter, follows.’
“To the introduction of-said answer of the witness and said purported articles of incorporation and certificates thereto, defendant objected on the following grounds:
“ ‘(1) Such evidence was immaterial in this case for any purpose whatsoever. (2) The articles do not show the regular formation of a corporation under the laws of California as to the formation of corporations, and was not pleaded or proven in this case. (3) The execution of the charter was not proven. (4) The certificate of the county clerk o‘f the superior court of Los Angeles, Cal., was not attested in due form so as to make a certified copy of the paper in his office admissible in evidence in this 'court and the law of California is not pleaded or proven so as to show that that certified copy as purported to have been made by the county clerk was duly filed or was to be duly filed in the office of the secretary of state of the state of California. (5) The law of California has not been pleaded or proven so as to show that charters are to be filed in the office of the secretary of state or that such paper was properly filed therein. (6) The attempted and purported certified copy or certificate of the secretary of state of California was not certified in the form and manner prescribed by the laws of the United States, in that the purported certificate is by the deputy and not by the secretary of state, and there is no evidence that the deputy secretary of state was the custodian of the great seal of California. (7) It-is not proven here that the great seal of California is affixed to the articles, and the certificate of the deputy secretary of state is not evidence of such fact, he not being the person authorized to make such certificate under the laws of the 'United States; also that it is not pleaded or proven what the laws of California are in relation to the formation of corporations or that those laws were complied with in the formation of the Pathfinder Motor Car Company, and that it had corporate existence by virtue of any charter granted by the state of California, and there is no evidence that any charter was ever granted by the state of California to said corporation; and, further, because the certified copy attached as a part of the witness’ answer and offered only purported to be a certified copy made by one HI G. Leland and that said certified copy of a certified copy is not admissible in evidence from a foreign state, but the original or best evidence should be produced.’
“Said objections were all overruled, and the answer of the witness and purported articles of incorporation and certificates thereto attached were admitted in evidence.
“Defendant presents the action of the court in overruling her objections to said evidence for review by this court by three separate propositions, which we copy in full as follows:
“‘(1) In order for plaintiff, as a creditor of a California corporation, to recover in a suit in this state against a resident of this state, as a stockholder of such corporation, under the laws of California making stockholders liable for the debts of such corporation,, it is necessary for the plaintiff to prove that the corporation was organized under the laws of California, which can only be done by proof of the laws of that state authorizing the creation of such corporation and the charter or articles of incorporation, and since plaintiff failed to produce in evidence the laws of the state of California authorizing the creation of the corporation, and failed to produce any competent evidence of the articles of incorporation, judgment should not have been rendered for plaintiff.
“‘(2) In order to prove that the Pathfinder Motor Car Company was a corporation, duly in'corporated-under the laws of California, it was necessary for plaintiff to produce in evidence the laws of the state of California authorizing the organization of such a corporation.
“‘(3) The faith and credit'due an authenticated copy of a nonjudicial record of another state, under section 90© of the United States Revised Statutes, depends on laws and usages of that state, and this requires proof of its laws and usages, as judicial notice will not be taken of them; and since plaintiff failed to introduce' the laws of California, authorizing the registration of a copy of the articles of incorporation of the Pathfinder Motor Car Company in the office of the secretary of state, the copy of the charter of said corporation produced in evidence by plaintiff was not admissible and did not show due incorporation thereof.’
“We find in the record no proof of any law or laws of the state of California authorizing the formation of corporations generally, nor the formation of corporations for the purposes -set out in the purported articles of incorporation of the Pathfinder Motor Car Company, nor prescribing the procedure for forming a corporation. Neither do we find-in the record proof of any law authorizing the filing of articles of incorporation when executed by the incorpora-tors, in the office of the county clerk of a county in said state, nor authorizing the filing or registration of a copy of the' articles of incorporation so filed, certified to by the county clerk, in the office of the secretary of state, as was done in this case.
“We deem it expedient in this connection to certify for your détermination the following questions:
“Eourth Question.
“Did the trial court err in admitting in evidence the testimony of the witness Frank C. Jordan, secretary of state above recited, and in admitting in connection therewith the purported articles of incorporation with the certificates attached thereto?
“Fifth Question.
“If not, did the same constitute prima facie proof of the creation of said corporation under the provisions of article 1131, Revised Statutes of 1911?
“Plaintiff contends that, in suits against stockholders of corporations purporting to have been organized under the laws of the state of California and doing business therein, proof of corporate existence was unnecessary, and that, at any rate, the issue of incorporation was a collateral one and proof of incorporation might be made by parol, and that the requirements of the law were met in this case by the testimony of Alfred Abeel, whose deposition was taken in' his lifetime, and who testified that he was a stockholder, and director in the Pathfinder Motor Car Company, and by his further testimony that he was, connected with the Pathfinder Motor Car Company, a corporation in California. We therefore deem it advisable to certify for your determination the following question:
“Sixth Question.
“Was parol evidence‘of the incorporation of the Pathfinder Motor Car Company admissible in this case, and could the corporate character of the Pathfinder Motor Car Company, for the purposes of this case, be proved by parol evidence alone?” ' .

Answering the first question stated in the certificate, and referring to that portion of the opinion of the Court of Civil Appeals quoted in the certificate, we approve said opinion in so far as it relates to said question. However, since the case was tried to the court without the intervention of a jury, and since the instrument was before the court when it was offered in evidence together with certain facts and circumstances having a tendency to 'establish the execution of the instrument it may have been that the trial' judge, afer hearing all the evidence, would have been justified in concluding that these facts and circumstances were sufficient to establish the execution of the lease by-Gustave Lachman, and the technical error in permitting the introduction of the contract in evidence without proof of its execution other than by the facts and circumstances constituted harmless error. The authorities are quite uniform that the execution of a written instrument may be established by circumstances, and a reading of the statement of facts in this case has convinced us that the plaintiff produced ample circumstantial evidence that Lachman executed the contract of lease. Moreover, the lessee accepted the lease and went into possession of the property, used it, and paid for the use to the original lessor, as well as to the assignee. We think these circumstances sufficient to show that Lachman executed the lease contract, and the error in admitting the instrument was harmless. Merrill v. Bradley, 52 Tex. Civ. App. 527, 121 S. W. 561; Groesbeek et al. v. Wiest (Tex. Civ. App.) 157 S. W. 258; International Harvester Co. of America v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033; American Surety Co. v. Camp (Tex. Civ. App.) 202 S. W. 798; Clark v. Turk (Tex. Civ. App.) 50 S. W. 1070.

In view of what we have said in answering the first question, it is not necessary to answer the second question.

The third question involves the construction of article 573, Bevised Statutes of 1925, which was article 588 of the Bevised Statutes of 1911, which has been quoted in the certificate. In his petition the plaintiff specifically pleaded the' assignment of the claim to himself and his ownership thereof and there wa's no plea of non est factum or denial thereof by the defendant under oath.' In McCormick v. Rainey, 101 Tex. 320, 107 S. W. 45, Chief Justice Gaines, in a case where the pleadings presented a similar situation, construing the article mentioned, said:

“We hold, however, that the assignment having been pleaded by appellee, and appellant not having denied its execution .under oath, she was not required to make proof of its execution in order to establish its admissibility in evidence.”

In that case the assignment of a claim' against an intestate which had been duly authenticated and approved 'by the probate court was offered in evidence, and, though the assignment was duly acknowledged by the assignor, it was held that it was not such an instrument as is authorized by statute .to be acknowledged and that the acknowledgment before a notary public of the assignment constituted no proof of its execution. But‘the assignment was held to- be admissible on th¡e ground that the party had specifically pleaded it, together with her ownership thereof, and, there having been no plea of non est factum under oath filed, the assignment was held to be admissible and to prove itself without additional evidence of its having been executed. So in this ease the plaintiff having alleged specifically the assignment of the lease to himself' and his ownership thereof, in the absence of a sworn plea of non est fac-tum, the instrument was admissible without further proof of execution under the terms of the statute. We think the distinction to be made in arriving at the true construction of the article mentioned is to determine whether the instrument offered in evidence constituted the basis of the plaintiff’s claim, as for instance a promissory note, or a bond,- or a contract to perform certain services. If the instrument offered constituted such basis, an assignee of the original party would be entitled to offer the instrument without proof of its execution under this article. Upon the contrary, if the instrument offered did not constitute the basis of the claim sued upon, but its proper office was to prove some material fact necessary to establish 'the claim, the statute would not apply and the execution of the instrument wquld have to be proved before it could be legally introduced in evidence. Schauer & Co. v. Beitel, Executor, 92 Tex. 601, 50 S. W. 931. We therefore think that the third question should be answered in the affirmative.

Beferring to the fourth question, it is our opinion that the trial court did not err in admitting in evidence the testimony of the witness Frank O. Jordan, secretary of state. It is true that the regular way to have proven the existence of any law of the state of California authorizing the formation of corporations generally, and especially the formation of corporations for the purposes set out in the purported articles of incorporation of the Pathfinder Motor Car Company and. describing the procedure for forming corporations, would have been to introduce authenticated copies of such laws. This course would have obviated the necessity of introducing any other testimony on that subject, but, in the absence of such authenticated copies, the same facts might be proven by circumstantial evidence, especially in view of the fact that the laws of another state must be presumed to be similar to our own when not otherwise proven. Green v. Rugely, 23 Tex. 544; Tempel v. Dodge, 89 Tex. 71, 32 S. W. 514, 33 S. W. 222; Burgess v. Western Union Telegraph Co., 92 Tex. 127, 46 S. W. 794, 71 Am. St. Rep. 883. According to the laws of Texas, the secretary of state is authorized to receive, file, and record charters of all private corporations upon satisfactory evidence of compliance with the law regulating the organization of such corporations and the payment of fees and franchise tax. Since the statutes of another state are not within ^the court’s judicial knowledge, they must be proven as are -other foreign laws. Jones v. Laney, 2 Tex. 348; Anderson v. Anderson, 23 Tex. 641; Randall v. Burtis, 57 Tex. 362. We think, in view of the similarity of the laws of Texas with the apparent provisions of the law of California with reference to the authentication of private corporations in the absence of authenticated copies of the laws themselves, the testimony of the secretary of state of the state of California had some probative force under the facts in this case as to whether the Pathfinder Motor Oar Company was a duly organized corporation under the laws of California, notwithstanding the fact that it further appears that, unlike our laws, those of the state of California would seem to require, as a prerequisite to the filing in the office of the secretary of state, that a full, true, and correct copy of the original articles of incorporation must be filed in the office of the county clerk and ex-officio clerk of the superior court of some county. Had not .this particular requirement been proven by the plaintiff, under the rule that the laws of another state must be presumed to be similar to our own when not shown to be otherwise, the certificate of the secretary of state of the state of California appended to the articles of incorporation of the Pathfinder Motor Car Company, accompanied by the great seal of the state of California duly filed in the case, would have been sufficient to have proven the corporate existence of said company under the laws of the state of California as alleged in the petition. Gill v. Everman, 94 Tex. 209, 59 S. W. 531. Clearly the testimony on this subject offered in evidence by. the plaintiff shows a difference between the laws of the two states on this subject and prevented the trial court from presuming that the laws of California and of Texas are the same. The courts, in- admitting in evidence copies of records of a sister state duly authenticated, cannot give effect to the records accorded to them by the laws of the sister state, unless the laws are: proved, for the courts cannot judicially know the legal effect of the records in the sister state. Newsom v. Langford (Tex. Civ, App.) 174 S. W. 1036.

While we think that the court did not err in admitting/ the evidence under discussion for the reason as heretofore stated that we think it had some probative effect tending to establish a material fact necessary for the plaintiff to recover, we do not think that this particular testimony constituted prima facie proof of the creation of the Pathfinder .Motor Car Company as q private corporation under the provisions of the article of our Revised Statutes mentioned in question 5 of the certificate, for the reason that under the provisions of said article the charter of a private corporation must be filed in the office of the secretary of state by the incorporators themselves, and this officer is required- to record the same at length in a book to be kept for that purpose and retain the original on file in his office, a copy of which duly certified under the great seal of the state shall be admitted in evidence of the creation of the corporation; whereas, it affirmatively appears from the record that the county clerk and ex officio clerk of the superior court of some county in the state of California must take some official action with reference to a proposed corporation, and after having taken this official action this particular officer seems to be required to file the articles with the secretary of state. On account of this proof having been made, the testimony of the witness Prank C. Jordan offered in connection with the certified copy of the articles of inborporation did not "have the effect to make prima facie proof of the creation of said corporation.

However, it further appears from the record that the defendant did not object to the introduction of other proof having a tendency to establish the incorporation of said company, and, without stating in detail what that other proof was, it may have been considered by the trial court ample evidence that said Pathfinder Motor Car Company was a corporation duly incorporated under 'the laws of the state of' California. Moreover, Alfred Abeel himself, the original defendant, testified by deposition as follows:

“I was connected with the Pathfinder Motor Car Company, a corporation m California. (Italics ours.) I am not certain the amount of stock issued in the Pathfinder Motor Car Company on the 2d day of December, 1912. My memory is it was about $20,000. As to what amount of stock was issued to me in said Pathfinder Motor Oar Company on or prior to December 2, 1912, and how much has been issued to me since, I do not remember the exact date, but when it was organized half the stock was issued to me and one-half to I. N. Johnston; at least that is my impression now. Perhaps one or two shares were issued to other parties to make them eligible as officers of the company.”

It will be noted that the original defendant himself distinctly testified to the fact that the Pathfinder Motor Car Company was a corporation in California. Russell v. Deutschman (Tex. Civ. App.) 100 S. W. 1169; Hill v. Houser, 51 Tex. Civ. App. 359, 115 S. W. 112; Houston C. Pub. Co. v. Quinn (Tex. Civ. App.) 184 S. W. 669; Houston Oil Co. v. Miller (Tex. Civ. App.) 196 S. W. 189; Wertham Bag Co. v. Houston Bag Co. (Tex. Civ. App.) 230 S. W. 1055. While we are of the opinion that under the facts of this case it was incumbent upon the plaintiff to allege and prove that the Pathfinder Motor Car Company was a corporation duly organized under the laws of the state of California, yet we are further of the opinion that the corporate existence and character of said company for the purpose of this case might he proved by parol evidence in connection with the documentary evidence found in the record, in consequence of which, we think the sixth question should be answered in the affirmative. It follows, therefore, that while we think the trial court did not err in admitting in evidence the testimony of the witness Erank O. Jordan, but that the same did not constitute prima facie proof of the creation of the alleged corporation, yet we think that the trial court was justified in considering the parol evidence introduced, < tending to prove the incorporation of the Pathfinder Motor Car Company in connection with the documentary testimony as legally sufficient to establish said incorporation and that any error committed by the trial court, holding that any particular testimony 'constituted prima facie, proof of the creation of said corporation, was harmless.

CTTRETON, C. J.

Opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals. 
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