See, to same effect, 1885, Camden S. D. & T. Co. v. Ingham, 40 N. J. Eq. 3; 1889, Minnesota Loan & Trust Co. v. Beebe et al., 40 Minn. 7, holding that a law authorizing corporations to be guardians, was valid and they could so act; 1890, Coleman's Admr. v. Parrott, 17 Ky. L. Rep. 814, 37 A. & E. C. C. 1. See note, 32 A. & E. C. C., p. 2. Sec. 316. 3. Power to act as agent, or attorney in fact. W. M. KILLINGSWORTH, APPELLANT, V. THE PORTLAND TRUST CO., OF OREGON, RESPONDENT.1 1890. IN THE SUPREME COURT OF OREGON. 18 Oregon Reports 351-356, 17 Am. St. Rep. 737, 32 A. & E. C. C. 33. LORD, J. This is an action to recover damages for failure of the defendant to execute and deliver to the plaintiff a conveyance of certain premises, pursuant to an agreement to that effect. The defendant denies this, and alleges as the attorney in fact of one Deborah H. Ingersoll, in compliance with said agreement, that it did execute and tender to the plaintiff a conveyance of said premises, etc., and now brings it into court and deposits it for the plaintiff, and that plaintiff refuses to accept the same. To this the plaintiff demurred on the ground that the same does not state facts sufficient to constitute a cause of defense to the cause of action alleged. The point raised by the demurrer is: Can the defendant, a corporation, execute a deed of conveyance of real property as the attorney in fact of another? It is provided by our statute that a corporation may engage in any lawful enterprise, business pursuit or occupation (Code, section 3217), so that, unless corporations are affected with some disability, when the articles of incorporation are sufficient for the purpose, there is no lawful occupation or business in which it may not engage in this state exactly as individuals. By its articles of incorporation the defendant corporation is expressly authorized and empowered "to act as the general or special agent, or attorney in fact, for any public or private corporation or person in the management and control of real estate or other property, its purchase, sale or conveyance, etc." No question is made but what the defendant, by its articles of incorporation, has conferred upon it the power to do the act for which there is claimed to be an alleged failure; but the contention is that a corporation, from the nature of the organization as an artificial body, necessitated to act through agents, is incapable of executing a deed as an attorney in fact. This argument is based on the assumption that there are some things, from the inherent nature of the case, that a corporation is incapable of doing, and seeks its illustrations in the common law, as that a corporation can not be an administrator or executor, because its duties are of a personal nature and can not be delegated, or to take an oath, when so required by law, before proceeding to execute some. 'Only so much of the opinion as relates to the single point is given. duty or trust. But this argument overlooks the fact that a corporation may be empowered to do by statute what it was incapable of doing under its common law powers, and when thus created, its powers, capacities and modes of exercising them depend upon the statute. Having the power conferred upon it to act as an attorney in fact, is it not endowed with all the faculties or capacities essential to execute it and carry out the business projects of its creation? Why may not a corporation act as an agent for an individual or another corporation? As the owner of real property, it can, by its authorized agents, execute a conveyance, or it may authorize another, by power of attorney in writing, to convey such property for it. Why, then, may it not act as the agent or attorney in fact of another for a like purpose, when it is so authorized, and to thus act is one of the chief powers conferred to effect the object of its creation and to carry on the business in which it is engaged? "Within the scope of its corporate powers," says Mr. Mechem, "unless there are express provisions in its charter, or constating instruments to the contrary, a corporation may act as agent, either for an individual, a partnership or another corporation. Many of the great corporations of the country are organized for this express purpose under statute or charters conferring and defining their powers and the methods of executing them; but even in other cases, the authority so to act might be implied as auxiliary to their main purpose." Mechem on Agency, $ 64. It is clear, then, that a corporation may act as the agent of another, and if so, it must be endued with the faculties or instrumentalities to perform the office it is authorized to undertake, and carry out the purposes of its creation. When a corporation engages in a legitimate business and is authorized by its incorporation to do the things necessary to carry on such business, it is an express grant of power to enable it to effect that object. If it is to be excluded from doing such things because, from the nature of its organization, it can not act personally, but only through agents, there would be little left in the domain of business it could do. As was said by the court in Hopkins v. Gallaton Turnpike Co., 4 Humph. 412, "the common law rule with regard to natural persons, that an agent, to bind his principal by deed, can not in the nature of things be applied to corporations aggregate, these being of mere legal existence, and their board, as such, literally speaking, are incapable of a personal act. They direct or assent by vote, but their most immediate mode of action must be by agent.' Being a creation of the law-an artificial person-it can only act by agents who are its limbs or instrumentalities to effect the purpose for which it was organized and to act for it, their act being the act of the corporation, exactly as the act of an individual is his act. As such, upon the principle of the objection raised, it could not make an acknowledgment in person, but it may by its officers, and in such cases, its officer affixing the seal is the party èxecuting the deed within the meaning of the statute requiring deeds to be acknowledged by the grantor. Kelly v. Calhoun, 95 U. S. 711; Frostberg M. B. Ass. v. Brace et al., 51 Md. 508; Am. & Eng. Enc., "Acknowledgments," "Corporations." In fact, within the same principle of reasoning, it may be said that a corporation can not make a deed of its own property; but we know it can, and that the act of its officers in so doing is the act of the corporation. When a corporation is made the agent of another to sell and convey property, it acts through the same instrumentalities as when acting for itself, and the relation between it and its instrumentalities is as one being, or artificial person, in the performance of its engagement, and involves no delegation of powers. So that when a corporation is invested with a power of attorney to sell and convey real property, the person conferring the power knows that the corporation can not act personally in the matter, but that in performing the engagement it will act through its agents, who for that purpose are its faculties, and whose acts in the discharge of that duty are the acts of the corporation, and as such must be considered to be included in the artificial person as instrumentalities authorized by him to do the act conferred upon it by his power of attorney. In this view, the argument that the corporation can not do such act under the power of attorney without a delegation of authority to its agents, and that the grantor of the power has given no such power of substitution, can not be sustained. There was no error, and the judgment must be affirmed. Note. See, 1875, McWilliams v. Detroit Co., 31 Mich. 275; 1890, Jemison v. Bank, 122 N. Y. 135, 1891, Van Dresser v. Óre. R. Co., 48 Fed. Rep. 202; 1896, Anderson v. Bank, 5 N. D. 451; 1897, Snow-Church Co. v. Hall, 19 Miscl. (N. Y.) 655. Compare, 1885, Westinghouse, etc., Co. v. Wilkinson, 79 Ala. 312. ARTICLE VI. POWER TO SUE AND BE SUED. Sec. 317. Right to sue, at common law, anywhere. THE SILVER LAKE BANK (IN PENNSYLVANIA) v. G. NORTH.1 1820. IN THE COURT OF CHANCERY OF NEW YORK. 4 Johns. Ch. (N. Y.) Rep. 370–374. [Bill to foreclose a mortgage, given upon land in New York, to secure a claim of the bank against the defendant for money loaned.] THE CHANCELLOR (Kent). There are several objections raised by the answer, and by the counsel, at the hearing, to the right of the plaintiffs to a foreclosure or sale of the mortgaged premises. 1. It is objected, that a foreign corporation can not be recognized as such and entitled to sue in our courts. It appears by the pleadings and proofs that the plaintiffs are a banking corporation, created by an act of the legislature of Pennsylvania, and that they took the mortgage in question to secure a loan of money made at their banking house in that state. There is perfect justice and equity in their demand, and I can not see that the objection is even plausible. It is well settled that foreign corporations may sue here in their corporate name, and may prove, as a matter of fact, if the same were denied, that they were lawfully incorporated. The Bank of the United States has sued in our courts. (1 Johns. Cas. 132.) In Henriques v. Dutch West India Company (2 Ld. Raym. 1532, 1 Str. 612), a suit was brought by a Dutch corporation and sustained, both in the K. B. and in the House of Lords, though it was objected in that case that a foreign corporation could not maintain a suit. This court ought to be as freely open to such suitors as a court of law, and it would be most unreasonable and unjust to deny them that privilege. They might well exclaim: Quod genus hoc hominum? * hospitio prohibemur arena. See, 1896, National Tel. Mfg. Co. v. Dubois, 165 Mass. 117, 52 Am. St. Rep. 503, infra, p. 1490; 1899, Alliance Trust Co. v. Wilson, 9 Kan. App. 891, 59 Pac. Rep. 177; 1899, Ware Cattle Co. v. Anderson, 107 Iowa 231, 77 N. W. Rep. 1026; 1900, Texas & P. R. Co. v. Davis, 93 Texas 378, 55 S. W. Rep. 562; 1900, Schmidt & Bro. v. Mahoney, 60 Neb. 20, 82 N. W. Rep. 99. Sec. 318. Under statutes, conditions imposed do not generally prevent suing. GARRATT FORD CO. v. VERMONT MANUFACTURING CO. ET AL. 1897. 20 R. I. IN THE SUPREME COURT OF RHODE ISLAND. Assumpsit for goods sold and delivered by a foreign corporation which had not appointed an attorney in this state on whom process against it might be served. Heard on defendant's petition for a new trial. STINESS, J. The plaintiff, a corporation located in Boston, Mass., sold to the defendant a tank, through a salesman who took the order in Providence, and it now seeks to recover the price in this suit. The defendant asked the judge presiding at the trial to charge that the plaintiff, being a foreign corporation, which had not complied with the law of this state in appointing a resident of this state as its attorney (Gen. Laws, cap. 253, §§ 36 to 41), was not entitled to maintain this action. To the refusal of the judge so to charge, the defendant asks for a new trial on the ground of erroneous ruling. The question, whether a corporation of one state can do business in another state without complying with the laws of such state, is one which has frequently arisen, and upon which decisions are conflicting, although many decisions turn upon the language of a statute. Thus it is held that a statute prohibiting a foreign corporation from doing business in a state without complying with its terms makes such business illegal and void, and that no such corporation can maintain an action to enforce its illegal contracts. And where the statute does not provide for the consequences of non-compliance, the argument is that the acts of the corporation must be void, or else the statute would be nugatory. In Massachusetts a penalty is imposed upon the agent doing business, but the statute (Laws of 1884, cap. 330, § 3) says that a failure to comply with the conditions shall not affect the validity of an act of the corporation. Rogers v. Simmons, 155 Mass. 259. Some statutes declare the acts to be void. In such cases there can be no question of validity. Some cases hold that where the statute imposes a penalty upon the agent but is silent as to the validity of the act, it is to be presumed that the legislature intended the penalty as a sufficient safeguard for compliance, and that to declare the acts of the corporation void would go further than the statute and impose an additional penalty, by construction, which should not be done. A notable case of this kind is Fritts v. Palmer, 132 U. S. 282, in which the court says: "The fair implication is that, in the judgment of the legislature of Colorado, this penalty was ample to effect the object of the statutes prescribing the terms upon which foreign corporations might do business in that state. It is not for the judiciary, at the instance or for the benefit of private parties claiming under deeds executed by the person who had previously conveyed to the corporation, according to the forms prescribed for passing title to real estate, to inflict the additional and harsh penalty of forfeiting, for the benefit of such parties, the estate thus conveyed to the corporation and by it conveyed to others. If the legislature had intended to declare that no title should pass under conveyance to a foreign corporation purchasing real estate before it acquires the right to engage in business in the state, and that such a conveyance should be an absolute nullity as between the grantor and grantee, leaving the grantor to deal with the property as if he had never sold it, that intention would have been clearly manifested." To the same effect are Dearborn F. Co. v. Augustine, 31 Pac. Rep. (Wash.) 327; Edison, etc., Co. v. Canadian Co., 8 Wash. 370, 24 L. R. A. 315, with a note which holds the contrary view. See, also, an instructive article by Mr. Gunn in Am. Law Reg., January, 1897, p. 19. Without multiplying authorities, we think that the reasoning which we have quoted is conclusive, although we concede that the greater number of authorities are probably the other way. We think, moreover, that we find support for this view in similar legislation in this state. In Gen. Laws R. I., cap. 182, § 17, it is declared, in the case of a foreign insurance company, that the contract shall be valid, and the same declaration is made as to resident insurance companies which fail to comply with the law. The argument is pressed that because this declaration of validity is made in these cases, its omission in the statute before us leads to the inference of the invalidity of other contracts. We do not think that the legislature intended to make one class of contracts valid and other contracts, under similar conditions, invalid. If the legislature intends to make such contracts as the one |