George J. A. Miller, for Plaintiffs.

Butz & Rupp for Defendants.

Laird H. Barber, P. J. Fifty-sixth Judicial District, specially presiding, November 16th, 1914. Plaintiffs claimed to recover under an alleged parol agreement to pay rent for certain premises during the time and at the rate per month fixed in a certain written lease which had been assigned by receiver in bankruptcy to the defendants.

The defendants claimed to have taken possession of the premises under and by virtue of the assignment of the lease by the receiver in pursuance of an order made by the United States District Court.

The defendants paid the rent up to the time when they removed from the premises and assigned the lease to a third party who continued to pay the rent for a few months after the defendants surrendered possession. The plaintiffs alleging a parol agreement to pay rent, brought suit to recover the amount of rent due for a period of six months after the time this third party ceased to pay.

The question submitted to the jury was whether the defendants took and held possession of the premises under the assignment by the receiver in bankruptcy or by virtue of a parol contract. Under the authority of Goss vs. Brick Co., 4 Pa. Sup. Ct., 167, and cases therein cited, the Court instructed the jury that if the defendants held under the assignment by the receiver, they would not be liable for rent accruing subsequent to their assignment to a third party. The verdict of the jury sustained the contention of the defendants, and the plaintiffs assigned as a reason for a new trial, that the Court erred in not sustaining their objection to the offer by the defendants of the copy of the order of the District Court, authorizing the assignment of the lease by the receiver after the original lessee was declared a bankrupt.

Victor L. Bittner, one of the plaintiffs who seemed to have acted for the others in the management of the leased property, thinking the bankrupt had no further right or interest in the premises, leased the same to one Coleman and received some rent in advance, but says he found the receiver had a right to assign the lease, that he received

notice of the assignment and returned the money paid by Coleman.

Although alleging a parol agreement in relation to the payment of rent, the plaintiffs did not at any time seem to have questioned the right of the defendants to take possession of the premises under the assignment. In fact, V. L. Bittner says, H. Sofransky, one of the defendants, made the agreement with me a few days after he had the keys and took possession. Upon cross-examination V. L. Bittner being shown a paper (Ex. K.) produced in Court by his counsel, said, "This is in my hand writing, copy made from original in office of District Court." The witness was therefore not in a position to deny the authority of the receiver to make the assignment after having seen and examined the original order by the Court to the receiver, nor was he in a position to question the correctness of the copy, having made it himself from the original and produced and identified it under oath in court. Plaintiffs sought to recover upon a parol contract which defendant denied, claiming to be the assignee of a written lease. Neither the execution of the lease or of the assignment was denied, and the order of the Court authorizing the receiver to make the assignment not being the basis of the cause of action or of the defendants, it was competent for the defendants to show the authority of the receiver to make the assignment by any competent evidence.

"Where proof is by a copy, an examined copy duly made and sworn to by any competent witness, is always admissible."

507.

American Life Insurance Co. vs. Rosenagle, 77 Pa.,

Otto vs. Trump, 115 Pa., 425.

The authority of the receiver to make the assignment having been shown, it follows that the copy of the lease containing the assignment was properly admitted.

The record does not show the remarks alleged to have been made by counsel for the defendants or a request for the withdrawal of the juror and the ruling by the Court. The Court can only grant a new trial for matters appearing upon the record and the depositions.

taken only confirm the verity of the record that no request was made at the time or any exception taken.

It is not sufficient, if counsel desires to insist upon the withdrawal of the juror, to simply note an objection. Counsel should direct the Court's attention particularly to the objectionable matter, insist upon his rights and, if refused, secure an exception.

Brown vs. Traction Co., 237 Pa., 324.

Ickes vs. Ickes, 237 Pa., 582.

The issues of fact were fairly submitted to the jury and the Court does not feel warranted in setting aside the verdict and granting a new trial for the reasons assigned.

And now, November 16th, 1914, the rule for a new trial granted May 5, 1914, is discharged and judgment directed to be entered on the verdict upon payment of the jury fee.

MILWAUKEE WESTERN MALT CO. vs. MELLET.

710.

Foreign Corporations-Contract- Act of June 8, 1911, P. L.

The Act of June 8, 1911, P. L. 710, requires foreign corporations, before doing business in the state, to appoint the Secretary of the Commonwealth to be their agent, upon whom service may be made, but failure to do this shall not affect the validity of any contract with such corporation, but no action shall be instituted until the foreign corporation complies with this act.

The words 'doing any business' as used in the act should not be construed to mean taking orders or making sales by samples, by agents from other states coming into our state which character of business is permitted under interstate commerce.

In the Court of Common Pleas of Schuylkill County. No. 340, January Term, 1913. Motion for New Trial.

J. B. Reilly, for Rule.

C. E. Berger, Contra.

Koch, J., December 21, 1914. The plaintiff is a corporation existing by virtue of the laws of the State of Wisconsin, and is engaged in business in the City of Milwaukee. It is not registered for doing business in this state. The defendant lives at Shenandoah in this county. On June 7th, 1912, he met at Shenandoah the plaintiff's

agent resident in New York, and entered into a written contract with the said agent for purchasing "two cars choice grade western malt." Price one dollar and thirtytwo cents per screened bushel F. O. B. Shenandoah, Pa., or Pottsville, Pa.," and the "malt to be shipped in bags in gradual monthly shipments between now and August 7, 1912. Billing directions to follow." It is not necessary for the purpose of this opinion, to quote more from the contract.

The contract was signed by the said agent and also by Mr. Mellet at Shenandoah, and was shortly thereafter ratified by the plaintiff. Very soon after the contract was made, the price of malt began to fall and it continued to fall, and the defendant would give no billing directions, although repeatedly requested by the plaintiff so to do, and finally the plaintiff sold the malt to another party at Milwaukee and brought this suit to recover the difference between the price received and the price that the defendant had agreed to pay allowing, however, for the variance between the prices at Milwaukee and Shenandoah. The verdict of the jury is in favor of the plaintiff, for the sum of nineteen hundred and eight dollars and twenty-nine cents.

We are asked to direct a verdict in favor of the defendant, because of the provisions of an act in this Commonwealth, entitled, "An Act to regulate the doing of business in this Commonwealth by foreign corporations; the registration thereof and service of the process thereon, and providing punishment and penalties for the violation of its provisions, and repealing previous legislation. on the subject; approved the 8th day of June, 1911, P. L.

710.

Under the provisions of said Act, "Every such foreign corporation, before doing business in this Commonwealth shall appoint in writing the Secretary of the Commonwealth, and his successor in office to be its true and lawful attorney and authorized agent, upon whom all lawful processes in any action of proceeding against it may be served." A fee of ten dollars is fixed for filing the power of attorney. It is further provided, "That the failure of any such corporation to file the power of attorney and statement aforesaid, with the Secretary of the Commmonwealth, shall not impair or affect the validity

of any contract with such corporation, and actions or proceedings at law or in equity may be instituted and maintained on such contract; but no such action shall be instituted or recovery had by any such corporation, on any such contract, either expressed or implied, in any of the Courts of this Commonwealth, or before any justice of the peace or magistrate thereof, on any cause of action. arising prior to the filing of the power of attorney and statement provided for in section two of this act, it shall pay to the Secretary of the Commonwealth, for the use of the Commonwealth, a license fee or fine of two hundred and fifty dollars.

When the plaintiff had put in its evidence, the defendant moved for a nonsuit, which was disallowed. To give a new trial now would be to meet the same question, which would have to be met by the same answer. The facts in the case do not make out "the doing of business in this Commonwealth" or "doing any business in this Commonwealth," within the meaning of the Act of 1911. This Act repeals "An act to prohibit foreign corporations from doing business in Pennsylvania without having known places of business and authorized agents," approved the 22nd day of April, 1874, P. L. 108, but the decisions under that act, as to what constitutes "doing business," must to a large extent control the decisions. under the present act, and we think reference need be had only to a few decisions under the former statute, in order to understand the present statute in respect of the words quoted above.

In the case of the Blakslee Manufacturing Co., vs. Robert W. Hilton et al., 5 Superior Court 180, the plaintiff was a corporation organized and doing business under the laws of the State of Illinois. The defendant had "ordered from the plaintiff company, through its agent, Eugene McElwaine, located at the City of Bradford, County of McKean, in this state, one steam pump, which was shipped to the defendant." The defendant sought to defeat recovery upon several grounds, one of which was that the plaintiffs had not complied with the provisions of said act of 1874, but failed the Superior Court saying: "The words 'doing any business' as used in the act, should not be construed to mean taking orders or making sales by sample, by agents coming into our