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Power OF ATTORNEY TO SELL DOES NOT CONFER PROPERTY.-AUTHORITY TO MORTGAGE THE SAME: Wood v. Goodridge, 6 Cush. 117; 52 Am. Dec. 771; note to Huntt v. Townshend, 100 Am. Dec. 65. Compare Kent v. Morrison, 153 Mass. 137; 25 Am. St. Rep. 616, and note.

SOBROGATION—RIGHT OF VOLUNTEEK.—A mere volunteer is not entitled to subrogation: Skinner v. T'irrell, 159 Mass. 474; 38 Am. St. Rep. 447, and note. A mere volunteer who advances money to pay off a mortgage is not entitled to be subrogated to the rights of the mortgagee; Kleimann v. Gieselmann, 114 Mo. 437; 35 Am. St. Rep. 761, and note.

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LA FRANCE FIRE ENGINE COMPANY v. Town Of

Mr. VERNON.

(9 WASHINGTON, 142.) FOREIGN CORPORATIONS_FAILURE TO COMPLY WITH STATUTE-PENALTY.

If a statute imposes a penalty on a foreign corporation for failure to file * copy of its charter and to appoint an agent the penalty so provided

is exclusive of any other. FOREIGN CORPORATIONS_FAILURE TO COMPLY WITH STATUTE_CONTRACTS

WITH–ESTOPPEL.–Uuder a statute failing to provide that contracts made by foreign corporations doing business within the state without complying with the provisions of such statute shall be void, but fixing a special penalty for such violation, a party contracting with such cor. poration is estopped from pleading its want of compliance with the

statute. PLEADING-CAUSE OF ACTION AGAINST CITY.-A complaint in an action

against a city to recover the balance of the purchase price of certain personal property based upon a note, and alleging a contract of pur. chase between the parties, that the note was given for part of the purchase price agreed upon, and issued under and by authority of the council of such city, that certain payments have been made by the issuance of warrants upon the treasury of such city, that there is now due and owing a specified sum, a claim for which has been duly presented to said city council and by it repudiated and payment refused, and that plaintiff is now the owner and holder of such note and claim, states a cause of action against the city. Million & Houser, for the appellant. J. Henry Smith, for the respondent.

14 DUNBAR, C. J. This action was brought by appellant, e corporation of New York, against respondent, a municipal corporation of the fourth class, to recover of and from respond

143 “$1250.

ent a balance due on the purchase price of a fire-engine sold and delivered to respondent in the year 1890, the suit being based on a note in words as follows:

Feb. 20, 1891. “Two years after date, we promise to pay to the order of La France Fire Engine Co. twelve hundred and fifty dollars, with interest thereon at 8 per cent per annum from date until paid, at First National Bank, Mt. Vernon, Wash.

“THE TOWN OF Mr. VERNON, “Per H. Clothier, Mayor of Mt. Vernon, Wash. “Attest: Fred G. Pickering, Clerk. (SEAL]"

The defendant demurred to the complaint for the reasons: 1. That the complaint did not state facts sufficient to constitute a cause of action; and 2. That the plaintiff had no legal capacity to sue. The demurrer was sustained by the court upon the second ground, viz., that the plaintiff had no legal capacity to sue, in that the complaint did not show that the appellant had complied with the laws of the state requiring foreign corporations to file certain papers with the secretary of state, as provided for in sections 1524 to 1531 of the General Statutes.

It is conceded that appellant has not complied with the laws of this state requiring foreign corporations to file copies of their charters, etc., but appellant contends that respondent cannot question its right to sue in our courts on contracts made with it in its corporate name after having received the benefit of such contracts.

It is a general proposition, sustained by the weight of authority, that, where a statute imposes a penalty for failure to comply with statutory requirements, the penalty so provided is exclusive of any other; at least, no other penalty will be implied: See Morawetz on Private Corporations, sec. 665, and cases cited. Our statute does not provide that the contracts made by foreign corporations which do not comply with the provisions of the statute shall be void, but fixes a special penalty for such a violation, and, in the absence of a special declaration that such contracts shall be void, especially where a penalty is attached for the violation, the party contracting with such corporation will be estopped 144 from pleading the want of compliance with the statute by the foreign corporation. This rule was announced by this court, after a pretty thorough investigation of the subject, in Dearborn Foundry Co. v. Augustine, 5 Wash. 67, and, as wo

are satisfied with the rule announced in that case, we will follow it in this.

It is claimed by the respondent that it was held by this court in Huttig Bros. Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, that a foreign corporation had no right to begin suit without first filing copies of its articles of incorporation, appointing an agent, etc. An investigation of that case shows that this court simply held that the filing of articles of incorporation by a foreign corporation and the appointment of an agent after the filing of a lien notice, and before suit to foreclose the same, was a sufficient compliance with the law relating to foreign corporations doing business within the state. This possibly might be construed as an implication in favor of respondent's theory, but certainly it did not go farther than that, and was not a necessary implication, as the circumstances of that case show.

It is also urged by respondent that no authority existed in respondent, or any of its officers in its behalf, to make such a note. The complaint shows that this was a sin ple contract between the city of Mt. Vernon, by its accredited agents, and the appellant, and that the note was given as part purchase price of the engine purchased; that it was issued under and by authority of the council of said city of Mt. Vernon; that the appellant is now the owner and holder of said note; that certain payments have been made by the issuance of warrants upon the treasury of said city, and that there is now due and owing the sum of fourteen hundred and sixty dollars, which said claim has been duly presented to the defendant's council, and that the defendant by and through its council repudiated said note and obligation, and refused to pay the same.

145 It seems to us that a plain contract is stated by this complaint; that if it had not been reduced to writing, or had not been in the shape of a note, which it is claimed the respondent had no authority to make, a good and enforceable contract is notwithstanding pleaded; that the claim was presented and refused, and that appellant's only remedy would be to sue the respondent and obtain a judgment. This judgment, of course, is only payable through the medium of a warrant drawn upon the treasury of the city; but, if the council refused to allow the claim when it was presented, we know of no other way by which the city could be compelled to issue the warrant than by obtaining a judgment in favor

of appellant for the amount which was found to be due to it under the contract.

For the reason, then, that the court erred in sustaining the demurrer on the ground that the appellant had no legal capacity to sue, and for the further reason that the complaint stated facts sufficient to constitute a cause of action, the judgment will be reversed, and the cause remanded, with instructions to overrule the demurrer to the complaint.

Hoyt, Scott, and ANDERS, JJ., concur.

MR. JUSTICE SriLes dissented on the ground that a municipal corporation has no implied power to issuo promissory notes. That there is only one way that a town treasurer can pay out its corporation money, and that is on warrants signed by the mayor and countersigned by the clerk. No war. rant can be issued until a claim has been presented to, and audited by, the council, and the warrant must specify the purpose for which it is drawn: Wash. Gen. Stats., sec. 675. The note in suit failed to show for what par pose it was drawn, and as it was not a warrant, the city treasurer had no right to pay it. Although it was signed by the mayor and clerk of the city, nothing appeared from the pleadings to show by what pretended anthority it had been so signed, nor was it anywhere made to appear that it was the note of the municipal corporation. For these reasons the complaint failed to state a cause of action against the city.

FOREIGN CORPORATIONS — FAILURE TO COMPLY WITH STATOTE - Con. TRACTS—ESTOPPEL-If the laws of a state provide that foreign corporations may register in the manner therein prescribed, and shall then bo entitled to the privileges of domestic corporations, but, if any of them shall do business without such registration, it shall incur a penalty not exceeding five dollars per day for every day during which it carries on business, this is not a prohibition against its doing business, and therefore a contract made by it, though it had not registered, is valid and enforceable: Edison etc. Electric Co. v. Canadian Pac. Nav. Co., 8 Wash. 370; 40 Am. St. Rep. 910, and nota.

COUNTY OF SPOKANE v. ALLEN.

(9 WASHINGTON, 229.) OFFICERS—ESTOPPEL TO Deny OFFICIAL CAPACITY.—If, under the provl.

sions of law, the office of county attorney is the same as that of prosecuting attorney, one who, though elected as county attorney, assumes tho duties of the office of prosecuting attorney, and collects delinquent taxes as such officer, is estopped to deny that he is filling that office in an action against him by the county to recover for taxes so collected

by him. OFFICERS—ATTORNEY FEES FOR COLLECTING Taxis–EXTRA COMPENSATION.

Attorney fees paid by delinquent taxpayers upon tax collections made by a county attorney whose duty it is to collect such taxes and whose salary is fixed by law cannot be retained by him w compensation for

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