Courier-Journal Job Printing Co. v. Anderson

159 Ill. App. 32, 1910 Ill. App. LEXIS 10

• Court: Appellate Court of Illinois
• Decided: December 1, 1910
• Docket: Gen. No. 15,342
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court.

We do not think that the right to maintain this action is to be determined on the affidavit filed with the motion to dismiss, treated as a special plea, but on the facts of the case as shown by the evidence.

The action is to recover the price of goo^js sold and delivered by the Insurance Field, a foreign corporation for profit, which, when said sales were made, maintained an office in this State and did business here without complying with the provisions of the statute regulating the admission of foreign corporations to do business in Illinois. Hurd’s Ed. R. S. sec. 67 b, et seq., chap. 32. If said foreign corporation sold said goods for itself, and not as agent for the plaintiff, it could not maintain an action for their price. United Lead Co. v. Reedy Co., 222 Ill. 199.

Defendant in error contends that the Insurance Field sold the goods in question as the agent for the plaintiff; that the plaintiff was the undisclosed principal of the seller and therefore can maintain this action for their price, although the Insurance Field could not.

We do not think that the general rule that an undisclosed principal who assumes a contract made by his agent takes it subject to all the attendant just counter claims and defenses of the other contracting party, embraces a right in such other party to interpose as a defense the fact that the agent was not authorized to do business in this State. Ilsley v. Merriam, 7 Cush. 242. But we think that the evidence wholly fails to show that the Insurance Field sold the goods in question as the agent of the plaintiff. The contention that the Insurance Field sold the goods in question as the agent of the plaintiff is based on the provisions of a contract in writing between said parties whióh was in force at the time the goods were sold. By that contract the Field Company agrees that the plaintiff company shall do all of its printing, etc.; that the plaintiff shall have the right to solicit printing, etc., and to use the name, good will, etc., of the Insurance Field; that the Insurance Field shall in such business have no interest except a commission of 2y2 per cent, to be paid to it by the plaintiff. The only obligation of the Insurance Field to the plaintiff imposed by the contract in respect to business done by the former company, was to have all. of its printing done by the plaintiff. The plaintiff did not sell the goods in question. They were sold by the Insurance Field, and as that company could not maintain an action in the courts of this State for their price, the plaintiff cannot.

The judgment will be reversed with judgment here for the defendant and for the costs in this court and in the Municipal Court.

Reversed and judgment here for the defendant.