Opinion
No. 34187.
November 25, 1940.
1. CORPORATIONS.
A foreign corporation engaged in discounting for cash for dealers engaged in selling electric appliances, installment sales contracts for unpaid balances thereon, was not "doing business" within state within meaning of statute barring suits by foreign corporation "doing business" in state if corporation does not file power of attorney to receive service, where contracts for sale of refrigerators had been made outside the state, notes were to be paid to corporation outside state at its business office, and title to refrigerators was to be vested in buyer only when all notes were paid (Code 1930, sec. 4140).
2. RECEIVERS.
In action by corporation engaged in business of discounting for cash for dealers engaged in selling electric appliances, installment sales contracts for unpaid balances thereon, to recover indebtedness allegedly due on installment contract notes assigned to it, allegations that defendant had sold refrigerators and appliances to various persons, on the installment plan, and that each of the contracts was in default from 3 to 14 months, if true, authorized receivership.
3. RECEIVERS.
Ordinarily, receiverships should not be granted without a hearing, but in emergency cases they should be granted.
APPEAL from the chancery court of Washington county; HON. J.L. WILLIAMS, Chancellor.
Ernest Kellner, Jr., of Greenville, for appellant.
The trial court erred in holding that a receiver should not have been appointed and in revoking the appointment of the receiver.
A reference to the various decisions, upon motions for the appointment of receivers, shows that each case has been made to depend upon its own peculiar features and throws but little light upon any new case, except so far as they establish the general principles, which are: That the plaintiff must show, first, either that he has a clear right to the property itself; or that he has some lien upon it, or that the property constitutes a special fund to which he has a right to resort, for the satisfaction of his claim. And secondly, that the possession of the property by the defendant was obtained by fraud; or that the property itself, or the income arising from it, is in danger of loss from the neglect, waste, misconduct or insolvency of the defendant.
Griffith's Chan. Practice, sec. 467.
The elements necessary to sustain the appointment of a receiver are clearly shown by the proof in this case. There was an independent suit by appellant against appellee for an admitted indebtedness of approximately $3,000; the indebtedness was secured by property in the possession of and under the control of the appellee which was being sold by him for cash and under contracts without properly accounting therefor; other property was involved under contracts sold and guaranteed to appellant by appellee securing approximately $7,000; the security for the fixed and contingent liability of appellee to appellant of approximately $10,000, which was also secured by his written guarantee of the contracts evidencing the same, was placed in imminent danger of loss and damage by the neglect and insolvency of appellee.
The trial court erred in holding that the appellant was doing business in the State of Mississippi contrary to Section 4140, Mississippi Code 1930.
In the conduct of his business the appellee sold two kinds of commercial paper to the appellant, to-wit, what were called "direct accounts" and "floor plan" or "trust receipt" paper, and entered into a contract with the appellant whereby the appellee undertook to collect for the appellant certain accounts called "meter accounts."
Out of the great mass of cases on the question of what constitutes doing business within the meaning of statutes fixing the terms and conditions upon which foreign corporations may do business in a state, it clearly appears that the question is largely one of fact to be determined by the circumstances of each particular case, and it is generally held that, to constitute doing business within the meaning of statutory provisions forbidding corporations from doing business in a state until they have complied with the statutory requirements, there must be the doing of some of the works, or the exercise of some of the functions for which the corporation was created.
Wiley Electric Co. of Jackson v. Electric Storage Battery Co., 167 Miss. 842, 853; Marx Bensdorf, Inc., v. First Joint Stock Land Bank, 178 Miss. 345.
With reference to the direct accounts, the appellant, never having maintained an office, agency, or agents in the State of Mississippi for the purchase thereof, purchased the contracts, without any obligation or understanding so to do, in Detroit, Michigan, and the contracts, to which the appellee was a party, provided that they were payable in Detroit, Michigan, and that the appellee was not the agent of the appellant to collect the monies thereunder or for any purpose whatsoever. This did not constitute doing business in the State of Mississippi.
Dodds v. Pyramid Securities Co., Inc., 165 Miss. 269.
The rule there announced by this court is in accord with the general rule which is stated in 12 R.C.L. 72, as follows: "In many cases the doctrine has been enunciated that, even though a corporation enters into a contract relating to property situated within a state, it is not doing business therein if the contract is consummated outside of the state, and hence is not required to comply with, nor is it bound by, the statutory regulations or restrictions generally applicable to foreign corporations attempting to do business therein, it being determined that such statutes were not intended to affect such cases, nor to change the rules of comity that have always been observed by the courts of the several states. Thus, it has been held that the taking of a chattel mortgage on a piano that is within the state does not constitute the transacting of business. Nor, it has been held, does a building and loan association, having its office in the state of its domicile, where under its constitution and by-laws its business must be conducted, all payments made, and all contracts passed upon, by making a loan in another state to a citizen thereof, through its agent therein, and taking a mortgage on land therein as security, do business therein within the meaning of a statute requiring the registration of foreign corporations, since in such case the contract is made and to be performed at the domicile of the corporation. Similarly, a corporation of one state does not carry on business in another state by discounting a note sent to it from the other state."
There are two lines of authority as to the legal effect of the transaction which is generally referred to as "The Trust Receipt as Security." In many states it is held that a trust receipt is a chattel mortgage and will not prevail against a bona fide purchaser for value without notice unless recorded. This seems to be the majority holding in the various courts. A very interesting discussion of the courts adhering to this view will be found in the decision of the circuit court of appeals, second circuit, in an opinion delivered by Justice Hand, in the case of In Re A.E. Fountain, Inc., 282 Fed. 816.
The holding in other courts, including this court, is that a trust receipt is a conditional sale of the property covered by the trust receipt, and will prevail against a purchaser of the property, with or without notice, whether recorded or not, except in cases where the maker of the trust receipt is a trader or merchant engaged in the business of selling the character of property covered by the trust receipt and the holder of the trust receipt either expressly or impliedly authorizes the sale of the property in the trade or business of the maker of the trust receipt.
Burkhalter v. Mitchell et al., 107 Miss. 92; Mitchell v. Williams, 155 Miss. 343; U.S. Motor Truck Co. v. Securities Co., 131 Miss. 664; Poss-Meehan Brake Shoe Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Hunter v. Crook, 93 Miss. 812, 47 So. 430.
Under the well-settled rule in our state it is indisputable that the purchase by the appellant of the several notes and trust receipts of the appellee was, in each instance, a conditional sale of the property covered by the trust receipts consummated in Detroit, Michigan, where the appellant purchased the same.
In this case the appellant requested the First National Bank to act for it in the execution and transmission of the trust receipt papers of the appellee which did not become a completed contract between the appellant and the appellee until the same were received by the appellant in Detroit, Michigan, and the appellant was under no duty or obligation to accept the same, and, if accepted became a Michigan contract. This clearly did not constitute doing business in Mississippi.
Saxony Mills v. Wagner et al., 94 Miss. 233; Union Cotton Oil Co. v. Patterson, 116 Miss. 802.
The activities of the agents of the appellant in the State of Mississippi were all for the purpose of realizing on contracts or accounts which the appellant had theretofore purchased outside the State of Mississippi and under the decisions of this court did not constitute "doing business" in the State either in contemplation of our privilege tax statute or in contemplation of the statute invoked by the appellee in this case.
Gully v. C.I.T. Corp., 168 Miss. 268; North American Mortgage Co. v. Hudson et al., 176 Miss. 266; C.I.T. Corp. v. Stuart, 185 Miss. 140.
Wynn, Hafter Lake, of Greenville, for appellee.
The chancellor was manifestly right in dissolving the receivership which he had ordered on an ex parte petition and without notice to the appellee. It is our opinion, considering all of the testimony in the record, that the chancellor could have had four causes for revoking the receivership, any of which would be sufficient to sustain our position on this appeal. (1) The appellant totally failed to prove any grounds warranting the appointment of a receiver for Mr. Turley's business. (2) That there was no debt due the appellant by the appellee at the time of the appointment of the receiver. (3) That if any debt was owed by the appellee to the appellant that the suit was prematurely brought. (4) That the appellant was a foreign corporation and was doing business in Mississippi without qualifying and in violation of the Mississippi statute so providing.
We agree with opposing counsel that Section 467 of Griffith's Mississippi Chancery Practice clearly states the law applicable to this question. We further state, however, that when the evidence in the record is applied to the law, as laid down by Judge Griffith in his work, it then becomes very evident that the appellant did not prove a case that would warrant the appointment of a receiver without notice under the law.
A receiver shall not be appointed without the party praying the appointment have given the opposite party at least five days' notice of the time and place of making the application, and one additional day for every thirty miles of travel thereto, unless it shall appear that an immediate appointment is necessary or good cause be shown for not giving the notice.
Sec. 471, Griffith's Mississippi Chancery Practice.
We maintain that it is proved by the evidence that this foreign corporation has been doing business in Mississippi, and in violation of Section 4140 of the Mississippi Code of 1930.
In appellant's brief, they take the position that the trust receipt should be construed and is construed by most courts as a simple conditional sales contract. We shall not take issue with them as to this construction of the instrument, for we say that regardless of any construction that may have been put on it, or any testimony, it is a contract made and entered into solely by and between the appellant and the appellee in Mississippi. That in this contract the appellee acknowledges that the two refrigerators are the property of the appellant and that the title will not pass until all of the purchase money has been fully paid, and he further obligates himself to store it in Greenville, Mississippi and not to demonstrate it or use it or in any way injure it until all the purchase money has been paid. We say that this is a contract — and that it is a Mississippi contract because it is made in Mississippi and is to be performed in Mississippi. That it is an executory contract and not an executed contract solely because there is a conditional retention of title to the property until the purchase money has been paid, and then the title is to pass and the property being delivered in Mississippi and remaining in Mississippi, the title passes in Mississippi when the contract is finally completed. That in all of its essential elements it is a Mississippi contract made and to be performed in Mississippi.
It cannot be argued that Mr. Turley was not one of the parties because it is shown on the face of the instrument that this is true. Neither can it be successfully argued that the Refrigeration Discount Corporation was not the only other party to this promissory note and trust receipt because it is shown on the face of the note and the trust receipt that they were the only parties to it. It cannot be argued by counsel that the Redisco Corporation did not have an agent in Mississippi because by their own written instruments, several of which were introduced in the trial and shown in the record, they expressly authorized, in writing, the First National Bank of Greenville, Mississippi to act as their agent in delivering the equipment which they had caused shipped to Greenville and to collect therefor. It cannot be argued that Mr. Turley had not completed entirely all things that he was under obligation to complete when he signed the trust receipt and the note. The property was delivered to him as his property and he had paid for it in accordance with his contract. There was nothing further for the Redisco corporation to do after the papers were completed, in their agent's hands in Greenville, Mississippi. There was nothing that they could have done, either to further close the transaction, or to revoke it. It had finally been completed in Greenville, Mississippi. Mr. Turley had bought the boxes and paid for them.
The only possible argument that counsel could make showing that these contracts were not Mississippi contracts would be that the notes were negotiable and payable in Detroit. This is fully answered in the case of Superior Laundry Cleaners, Inc., v. American Laundry Machinery Co., 155 So. 186, 170 Miss. 450, for therein the court quotes that the contract is executory and that the final act of performance was the passage of title which is likewise in the present case and was proved in all cases in Mississippi.
Counsel attempts in their brief to show that the floor plan contracts were similar in all essential respects to the conditional sale contracts and that therefore the cases involving the purchase of conditional sales contracts control the floor planning contracts. We do not agree with this contention of counsel, for there are many essential differences.
In the case of conditional sales contracts, it is essentially the purchase of negotiable paper secured by collateral located in Mississippi. The floor plan contract is entirely different, for there the property is sold and delivered in the Mississippi, his notes securing the same are signed and executed and delivered in Mississippi and accepted in Mississippi by the appellant's agent, the First National Bank. There are no reservations in the notes or trust receipts that would give the appellant the right to have accepted or rejected the contracts when the papers were actually delivered in Detroit. The transaction was closed and binding upon Mr. Turley and the appellant, when the papers were signed and delivered to the First National Bank in Greenville, Mississippi.
Mr. Hurd's conduct amounted to more than sending an agent to Mississippi to work out the collection of the contracts which appellant already owned. He entered into a contract not for the resale of this property but entered into contracts whereby he paid Mr. Turley, a Mississippi citizen, a definite fixed sum in consideration of Mr. Turley's endorsing and guaranteeing the payments of the existing contracts. In other words, the contract with Mr. Turley was an additional contract made by the appellant in Mississippi relative to their business, and under the test of the law as to what constitutes doing business the contracts made by the appellant through their agent, Mr. Hurd, with Mr. Turley constituted doing business in Mississippi. We submit that the following acts on the part of the appellant did not constitute doing business in Mississippi of and by themselves, but when considering the conduct through the period of years by the appellant we think that we add to our theory that by its conducted course of business through the years the appellant was doing business in Mississippi by (1) auditing books of dealers; (2) maintaining representatives traveling throughout the state, contacting customers, and making necessary adjustments.
The appellant, the Refrigeration Discount Corporation, filed suit in the Chancery Court of Washington County, against G.W. Turley, to recover certain indebtedness claimed to be due on the purchase of installment contract notes which had been assigned to it as a finance corporation, by a firm in Memphis, Tennessee. This firm had sold the appellee refrigerating appliances, principally Kelvinators, taking a written contract therefor, which it then assigned and discounted to the Refrigeration Discount Corporation. The appellant, complainant in the court below, also prayed for the appointment of a receiver to take charge of Turley's business pending the decision of the Court, which was granted without a hearing, on the allegations of the sworn bill, but which was revoked a few days thereafter, on motion. The court below, on a hearing of the cause on motion, bill, answer and proof, allowed damages for the wrongful suing out of the receivership, in the amount of $12.098.73, holding that the appellant was a foreign corporation, doing business in the state of Mississippi without filing a copy of its charter, and the appointment of an agent in the state upon whom process could be served. From the judgment so rendered this appeal is prosecuted.
The appellant is a foreign corporation with its business office in Detroit, Michigan; its sole business, it is claimed, being to finance dealers in refrigeration products, principally Kelvinator products. It maintained no office or agency in Mississippi, and was not licensed to do business in this state. However, it sent its agents into Mississippi after contracts were assigned to it, to see how its business was being conducted after such assignments.
The appellee, a resident of Greenville, Mississippi, was a dealer in refrigeration products, such as electric refrigerators, and other household and commercial appliances usually sold by dealers engaged in such business.
The bill alleged that the appellant was a nonresident, with its place of business in Detroit, Michigan; and that it engaged in the business of discounting for cash for dealers engaged in selling Kelvinators and other electrical appliances, installment sales contracts for unpaid balances thereon. It was alleged that the appellee had sold the refrigerators and appliances to various persons, on the installment plan; and that each of the contracts were in default for several months — from three to fourteen; the amount of the purchase price, the period of delinquency, and the unpaid balances being set forth in the bill, such unpaid balances amounting to $3,355.96.
A copy of the form of contract and assignment is made an exhibit to the declaration.
The refrigerators involved in the suit, with a few exceptions, were sold to the appellee by Fulmer, a Memphis dealer, who assigned them to the appellant. In the contract it was recited that the seller sells, and the buyer purchases, property (giving the number) for a cash payment, and other data, setting out the terms upon which the property was bought, with the days of the month upon which payments were to be made over a period of time covered by the contract. This contract recited that all payments by the purchaser were to be made at the office of the Refrigeration Discount Corporation, in Detroit, Michigan; and that the purchaser acknowledges that the seller is not an agent of the corporation, to receive payment of the moneys payable under the contract, that all payments are to be made to the said corporation, and that no payments not so made will be credited unless and until received by said corporation. In the contract it is further provided that until the purchase price is paid in full, the merchandise, or any additions or substitutes, shall be and remain the sole personal property of the seller. The purchaser agreed to pay all expenses, charges and costs, including a reasonable attorney's fee in event the seller exercises any of his rights under the contract, either by taking the property or filing a legal action to enforce any remedy provided for therein. In the contract, also, the purchaser agrees to take good case of the merchandise, to insure it against the hazard of fire, paying the premiums thereon, and to be responsible for loss by theft, or otherwise; and that the proceeds of insurance paid in event of loss shall be paid to the seller or his assigns in reduction of any balance then due by the purchaser. The purchaser agreeing not to remove the merchandise from the address he has given without the consent of the seller or his assigns.
In the contract it is further agreed that in case of default by the purchaser on any of his obligations, or if any levy or attachment should be made, or proceeding in bankruptcy be instituted against the purchaser or his property, or if an application for a receiver be made for the business of the purchaser, endangering the merchandise, the entire amount shall immediately become due and payable, and the seller or his assigns may collect same, or without notice or liability for damages, take possession of the merchandise without due process of law; all payments made by purchaser to be considered as payment for the use of said merchandise, and as liquidated damages for such default; and the seller or his assigns may sell the merchandise so retaken at public or private sale, and from the proceeds thereof they may deduct all expenses incident to such act (including a reasonable attorney's fee), the balance to be applied against the amount due; and any surplus to be paid to the purchaser, or any deficiency to be paid by him with interest.
It was further stipulated that, "It is understood and agreed that this instrument and the seller's interest therein may be offered by the seller for discount to Refrigeration Discount Corporation of Detroit, Michigan. To induce said corporation to accept such assignment, the purchaser hereby agrees and represents to such corporation that such assignment shall be free of any and all defenses which the purchaser may or might have against the seller. No action taken by the seller or his assigns to enforce or any waiver of any rights under the mechanics lien law shall prejudice any of the rights stated above." It then provided for the furnishing of certain information indicated in the contract.
The contract also stated: "For value received, we hereby sell, assign and transfer to Refrigeration Discount Corporation, its successors and assigns, the contract on the reverse hereof and all right, title and interest in and to the property therein described, and all rights and remedies thereunder, including the right to collect all installments due thereon, and the right either in assignee's own behalf or in our name, to take all such proceedings, legal or otherwise, as we might have taken, save for this assignment; and warrant that the contract is genuine, enforceable, and the only contract executed for the equipment described therein; that all statements therein contained are true; that the equipment was delivered and accepted on . . ., and warrant the payment when due of each sum payable thereunder, and the payment on demand of the entire unpaid balance in the event of nonpayment by the customer of any sum at its due date or of any other default by the customer without first requiring assignee to proceed against said customer."
It also contained the following: "We agree that assignee may audit our books and records relating to paper sold to it and agree that without notice to us and without releasing our liability assignee may release any rights against and grant extensions of time of payment to the customer and we waive presentment and demand for payment, protest or notice of protest."
On the trial it appeared that the appellant had some contracts with a merchant at Vicksburg, and that some disagreement or trouble arose between them in regard to the contracts, and that these were sold to the appellee. The refrigerators in question had a meter attached to them, in which the purchaser from the dealer would deposit money, to be taken up by the dealer monthly; and that the appellee endorsed these contracts, assumed liability to the appellant for payment; his note therefor being payable in Detroit, Michigan.
These contracts provided for the title to be retained in the appellant until paid for, the payments to be made, as stated, at the office in Detroit.
Some of the meters for the refrigerators were shipped to Greenville, and a bank in that place was requested by the appellant to have the contract signed, and the refrigerators, on the signing of the contract and payment of the first installment, were to be delivered to the appellee in Greenville, and kept by him until the amount due for the refrigerators was fully paid.
It is contended that this sending of papers to the Bank of Greenville to be executed, and the requesting of the bank to act for it, and to have the refrigerators delivered when the contracts were executed, constitutes the doing of business in the state of Mississippi.
The appellant, after these contracts were executed, and assigned to the appellant, sent agents to Greenville to see that the contracts were being carried out, and to inspect the books of the appellee, and make reports to appellant in regard to said matters.
During the existence of the contract, and before the filing of the suit, because of the manner in which the appellee was making payments, and conducting his business, credit was extended only to the extent of ninety per cent of the amount furnished to those whose credit was unimpaired by default, or negligence or unsatisfactory methods in conducting their business. The ten per cent withheld was for the benefit of the dealer, and would be assigned to him, or applied on his behalf when the said contracts were paid, instead of being given to him in advance.
After the appellee had been in default on the contracts, as above stated, the contract was placed with a local attorney at Greenville for adjustment or the bringing of suit; and the attorney was threatening to proceed legally, and to secure a receivership, when it was agreed that if the appellee could raise as much as $1,200 to $1,500 to apply on the default, the account would be carried on under the same conditions. The appellee tried to raise this money, but failed.
The appellee also had an account with another concern, C.V. Hill Company, and one of its representatives was in the appellee's place of business, and overheard the conversation between the attorney for the appellant and the wife of the appellee, in which a receivership was threatened; and this agent of C.V. Hill Company advised that their refrigerators and other merchandise be stored in a fireproof place in Greenville. The appellee consulted an attorney, who advised, in view of the appellant's demands, that the refrigerators be stored in a fireproof place, including the products of the C.V. Hill Company, and also those refrigerators, contracts for which had been assigned to the appellant.
Thereupon the attorney for the appellant applied for the appointment of a receiver; and a few days after such appointment the receiver was discharged by the court, and the cause came on for hearing on bill, answer and proof. On the hearing the Chancellor found that the appellant was doing business in the state of Mississippi; that it had not filed a copy of its charter, and appointed an agent upon whom process might be served, and was not entitled to maintain a suit in the courts of this state; and assessed damages and liabilities against the appellant as follows: reserves or holdbacks, $1,148.73; store rent, $50; salary to employee, $150; attorney's fee, $750; damage to business, $10,000; making a total of $12,098.73.
In its decree the court found that no usury was contracted for, or paid by appellee to the appellant on the contract sued on; that the appellant was indebted to the appellee in the following sums on account of reserves or hold-backs, to-wit, $354.02, $724.54, $63.53, and $6.65, aggregating the sum of $1,148.73, as above stated; and, finally, that the appellee had sustained the following items of damage on account of the wrongful loss, etc.: one month's store rent, $50; salary to employee, one month, $150; attorney's fee, $750; damage to business, $10,000.
We have considered the question as to whether the appellant, under the above statement, was doing business in the state of Mississippi while failing to comply with the laws requiring foreign corporations to file a copy of their charter therein, and to appoint an agent or representative, upon whom service of process may be had. And in view of the conclusions we have reached upon this proposition, we think it is unnecessary to decide the other propositions involved.
In our opinion, the appellant was not doing business in this state within the meaning of section 4140, Code of 1930. This section reads:
"Every domestic corporation shall maintain an office in the county of its domicile in this state, either in charge of an officer or officers of the corporation, or in charge of some persons or corporation duly designated as resident agent for the service of process by the directors (by whatever named [name] called) of such corporation, a duly certified copy of the resolution designating such resident agent, and the written acceptance of such agency by the agent, to be filed with the secretary of state. In the event of the death, resignation or removal of such resident agent, another shall be substituted within thirty days in the same manner and accompanied by the same fee as in the former appointment; and until such substitution, or in event of the failure of a corporation to so designate and qualify a resident agent where one is required by this act, the secretary of state shall be the agent for the service of process upon such corporation without resident agent, until one shall have been designated as herein provided.
"Every foreign corporation doing business in the state of Mississippi, whether it has been domesticated or simply authorized to do business within the state of Mississippi, shall file a written power of attorney designating the secretary of state or in lieu thereof an agent as above provided in this section, upon whom service of process may be had in the event of any suit against said corporation; and any foreign corporation doing business in the state of Mississippi shall file such written power of attorney before it shall be domesticated or authorized to do business in this state, and the secretary of state shall be allowed such fees therefor as is herein provided for designating resident agents. Any foreign corporation failing to comply with the above provisions shall not be permitted to bring or maintain any action or suit in any of the courts of this state."
We do not think it is necessary to enter upon a review of the many decisions upon this subject in this state — we content ourselves with citing the following: Wiley Electric Co. of Jackson v. Electric Storage Battery Co., 167 Miss. 842, 147 So. 773; Marx Bensdorf, Inc., v. First Joint Stock Land Bank of New Orleans, 178 Miss. 345, 173 So. 297; Dodds v. Pyramid Securities Co., Inc., 165 Miss. 269, 147 So. 328; North American Mortg. Co. v. Hudson, 176 Miss. 266, 168 So. 79; C.I.T. Corp. v. Stuart, 185 Miss. 140, 187 So. 204; A.C. Crenshaw v. State of Arkansas, 227 U.S. 389, 401, 33 S.Ct. 294, 57 L.Ed. 565.
In reference to the contention that the meter refrigerator, which was delivered at Greenville, with a contract to be signed there, the notes to be paid at Detroit, Michigan, title to be vested in the appellant until all the notes are paid, it will be observed that the property sale does not become complete, and the title become vested, until payment is so made by the appellee to the appellant at Detroit, Michigan. Furthermore, this transaction was made with reference to property which had been sold to another firm under a contract, the obligation of which the appellee had assumed and contracted to pay, was not a doing of business in the state of Mississippi, in the sense indicated in the statute, as construed by the Court. The cases above cited will demonstrate, we think, that the last act to be performed by the parties, essential to the completion of the contract, was to be performed in Detroit, Michigan. The appellant was not engaging in a general business, but in a transaction enabling the appellant to realize from a contract formerly made with a merchant at Vicksburg, Mississippi.
In view of the fact that the court below found that the appellant was doing business in the state of Mississippi without complying with the laws thereof, in which holding we think he was in error, it is unnecessary, and would be improper, to decide the other matters. In view of its decision thereon, the court below should only have decided this question, with the question of damages flowing from the wrongful suing out of the receivership. If upheld here, this decision of the Chancellor would have rendered any other matters immaterial, because of the holding that the party had no right to litigate in the courts — hence that should have been the only question determined.
It appears from the allegation of the bill that at the time the bill was presented, if its allegations were, in fact, true, the receivership was proper. Ordinarily receiverships should not be granted without a hearing, but there are emergency cases where this should be done.
We only pass upon the question of whether the appellant was doing business in the state in violation of law; and in view of our holding on that question we remand the cause for further proceedings in the court below.
Reversed and remanded.