225 U.S.

Opinion of the Court.

Appliance Act. But in that case the Federal question was specially set up and definite rulings had upon definite questions requiring a construction of the act. Thus the court concludes the paragraph above set out by saying (p. 293):

"The defendant, now plaintiff in error, objected to an erroneous construction of the Safety Appliance Act, which warranted on the evidence a judgment against it, and insisted upon a correct construction of the act, which warranted on the evidence a judgment in its favor. The denials of its claims were decisions of Federal questions reviewable here."

It was the obvious duty of counsel, if they wished any particular construction of the act, to put the request in such definite terms as that the attention of the court might be directed to the point, and the record here should show that the right now claimed was the right "specially set up" and denied by the court. "It must appear on the face of the record that it was in fact raised; that the judicial mind of the court was exercised upon it; and then a decision against the right claimed under it.". Or, at all events, it must appear from the record that there was necessarily present a definite issue as to the correct construction of the act, so directly involved that the court could not have given the judgment it did without deciding the question against the contention of the plaintiff in error. Maxwell v. Newbold, 18 How. 511, 515; Sayward v. Denny, 158 U. S. 180; Gillis v. Stinchfield, 159 U. S. 658; Speed v. McCarthy, 181 U. S. 269, 275, 276; Gaar, Scott Co. v. Shannon, 223 U. S. 468, decided at present term. In Appleby v. Buffalo, 221 U. S. 524, 529, this court said:

"This court has had frequent occasion to say that its right to review the judgment of the highest court of a State is specifically limited by the provisions of § 709 of the Revised Statutes of the United States. This right of review in cases such as the one at bar depends upon an

alleged denial of some right, privilege or immunity specially set up and claimed under the Constitution, or authority of the United States, which it is alleged has been denied by the judgment of the state court. In such cases it is thoroughly well settled that the record of the state court must disclose that the right so set up and claimed was expressly denied, or that such was the necessary effect, in law, of the judgment. Sayward v. Denny, 158 U. S. 180, 183; Harding v. Illinois, 196 U. S. 78; WatersPierce Oil Co. v. Texas, 212 U. S. 86, 97."

Passing now to the error assigned to a paragraph in the general charge, the part objected to and assigned as error is the clause italicized. It was a part of the general charge in respect of contributory negligence. It was limited to the separate issue submitted to the jury as to such negligence.

It is not easy to see why the mere going into the express car would be negligent unless the conditions were such as to be an act of imprudence which a reasonable man would not have done. But this we pass by as pertaining to the merits. In any event the exception did not raise any specific question as to the proper construction of the act under which this action had been brought.

The jury was in explicit terms told that if they found the plaintiff guilty of contributory negligence it would not bar a recovery, but that the damages assessed must be diminished in proportion to the amount of negligence attributable to the plaintiff. This was in pursuance of the statute. The jury specially found that the plaintiff had not been guilty of contributory negligence.

In conclusion, we are of opinion that neither the instructions denied nor that objected to are sufficient to raise any Federal question which this court may review.

The motion to dismiss the writ for want of jurisdiction is therefore granted.

DAVID LUPTON'S SONS COMPANY v. AUTOMOBILE CLUB OF AMERICA.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 137. Argued December 20, 1911.—Decided June 7, 1912.

Where the trial in the Circuit Court is before a referee by stipulation, the only question here is whether there is any error of law in the judgment rendered by the court upon the facts found by the referee. These findings are conclusive in this court. Nor can this court pass upon exceptions to the refusal of the referee to find facts as requested.

In determining whether, under a state statute, failure to comply with its terms renders a contract void or merely acts as a bar to maintaining an action thereon, the Federal court must follow the interpretation given the statute by the highest court of the State.

As construed by the Court of Appeals of that State, § 15 of the General Corporation Law of New York does not make contracts of a foreign corporation which has not complied with its provisions absolutely void, but merely disables the corporation from suing thereon in the courts of the State.

Where the contract of a corporation of one State not complying with the statutes of another State where the contract is made, is not void, the corporation can maintain its action, if jurisdiction otherwise exists, in the Federal courts.

A State cannot prescribe the qualifications of suitors in the Federal courts; nor can it deprive of their privileges those who are entitled under the Constitution and laws of the United States to resort to the Federal courts for the enforcement of valid contracts. Judgment ordered for plaintiff for amount fixed by referee's findings of fact.

THE facts, which involve the construction of § 15 of the General Corporation Law of New York, and the right of foreign corporations which had not complied therewith, to sue in the Federal courts, are stated in the opinion.

Argument for Plaintiff in Error.

225 U.S.

Mr. William Ford Upson, with whom Mr. William Forse Scott was on the brief, for plaintiff in error:

The judgment entered on the report of the referee is reviewable. Roberts v. Benjamin, 124 U. S. 64, 67; Chicago, M. & St. P. R. Co. v. Clark, 178 U. S. 353, 364; Bagley v. Gen. Fire Ext. Co., 150 Fed. Rep. 284.

Plaintiff's claim that the statute of the State of New York was in contravention of the Constitution of the United States sufficiently appears by the record. Loeb v. Columbia, 179 U. S. 472, 476; Holder v. Aultman, 169 U. S. 81, 88.

A bill of exceptions is not required or appropriate for raising the points here sought to be reviewed. Rev. Stat., §700; Ætna Ins. Co. v. Boon, 95 U. S. 117, 124; Walnut v. Wade, 103 U. S. 683, 688.

The transaction in suit, consisting essentially of the sale of articles manufactured in Pennsylvania, to be thence transported to New York and there delivered to defendant, was interstate commerce and as such under the protection of the Federal Constitution. Brown v. Maryland, 12 Wheat. 419, 447; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 734; Norf. & West. R. Co. v. Pennsylvania, 136 U. S. 114.

If plaintiff has also done some local business, that does not affect its rights. Crutcher v. Kentucky, 141 U. S. 47, 59.

The fact that plaintiff did some work in putting the frames in place and hanging the sash in the frames does not deprive it of protection. Caldwell v. North Carolina, 187 U. S. 622; Milan Milling Co. v. Gorten, 93 Tennessee, 590; Black-Clawson Co. v. Carlyle Paper Co., 133 Ill. App. 61; Chuse Engine Co. v. Vromania Co., 133 S. W. Rep. 624; Wolf Co. v. Kutch, 132 N. W. Rep. 981.

It is not necessary that the contract to be protected should itself specify or require goods from another State; the substantial character of the transaction is controlling.

225.U.S.

Argument for Defendant in Error.

Rearick v. Pennsylvania, 203 U. S. 507, 511; Swift & Co. v. United States, 196 U. S. 375, 398.

The New York statute is in contravention of the Federal Constitution, and the provision that the corporation may not maintain any action in any court in the State is inseparable from the rest of the statute and falls with it. International Text Book Co. v. Pigg, 217 U. S. 91, 108.

The interference of defendant excused performance of the contract to the extent of the work which defendant caused to be done by others. United States v. Peck, 102 U. S. 46; Kingsley v. Brooklyn, 78 N. Y. 200, 216.

Defendant waived any default of strict performance on the part of plaintiff.

In substance and effect the referee's report was in favor of the plaintiff, for his legal conclusions are overborne by his specific findings from which opposite conclusions should have been drawn.

Mr. William W. Niles for defendant in error:

The judgment entered herein on the report of the referee is not reviewable. York &c. R. R. v. Myers, 18 How. 252; Campbell v. Boyreau, 21 How. 223; Kearney v. Case, 12 Wall. 275.

The alleged errors assigned herein do not raise any issue which would give this court jurisdiction to review the judgment herein entered.

The Supreme Court will not review alleged errors in the refusal of the court to find facts requested. Shipman v. Straitville Mining Co., 158 U. S. 361; Insurance Co. v. Folsom, 18 Wall. 237, 250.

The transcript of record contains no bill of exceptions, and thus fails to show what questions were raised on the trial of the action before the referee, and fails to show that any question which would give this court jurisdiction was in issue in the court below. Rev. Stat., § 700; Insurance Co. v. Folsom, 18 Wall. 237; see pp. 249, 250.