244 P. 661
Oregon Supreme Court.Argued March 23, 1926
Affirmed March 30, 1926
From Douglas: JAMES W. HAMILTON. Judge.
For appellant there was a brief and oral argument by Mr. O.S. Brown.
For respondent there was a brief over the name of Messrs. Wimberly Cordon, with an oral argument by Mr. Carl E. Wimberly.
The sole question arising on this appeal is the capacity of the plaintiff to bring this suit; it being assumed by the defendant that it was the duty of the plaintiff to show affirmatively that it had complied with Section 6908, Or. L., which requires foreign corporations transacting business within this state to take out a license, and appoint an attorney-in-fact upon whom service can be had, before it can maintain an action or proceeding in our court. It has been held by this court that the complaint need not show a compliance with the section of the statute above referred to, but that if defendant wishes to avail himself of noncompliance as a defense, he must do so by a plea in abatement. This has not been done in this case, and the defense, even if it existed, must be deemed to have been waived. In
addition to this, it does not appear anywhere in the record that the defendant is transacting business in this state, or ever has transacted business in this state. It does appear that the contract sued upon here was made and entered into and the goods delivered in the State of Missouri, and that all the plaintiff has done, so far as appears from the complaint, is to sue in our court for the price of the goods. This is not “transacting business” within the meaning of the statute, and it never was the intent of the legislature that a foreign corporation should buy a license and have a registered attorney in this state merely for the purpose of collecting a bill. The absurdity can at once be seen by supposing a case. For instance, if one purchased a bill of goods amounting to $25 from a corporation in the State of Missouri, and then moved to the State of Oregon, under appellant’s construction, the corporation selling the goods would have to get a license to transact business in the State of Oregon, and pay a fee of $100 in order to collect its bill. The legislature never intended any such absurdity. This position is borne out by our own decisions: Bertin Lepori v. Mattison et al., 69 Or. 470 (139 P. 330), and Major Creek Lumber Co. v Johnson, 99 Or. 172 (195 P. 177).
The judgment of the lower court is affirmed.
BEAN, BROWN and BELT, JJ., concur.