The following originally *Page 438 prepared as a dissenting opinion, is now submitted as a special concurring opinion:
It seems to me, after a considerable study of this case, that the judgment of the court below should be affirmed. In the main, my views on the very important questions involved coincide with those expressed in an opinion which was submitted to the court in this case by Commissioner MATHEWS, and which reads in part as follows:
"Plaintiff's contention is that inasmuch as Broadalbin Storage Company had not obtained a permit to transact business in the State of Florida at the time of the execution and delivery of the note sued on, defendants Henry C. Finch and Millicent M. Finch, who executed the note in the name of Broadalbin Storage Company by them as its president and secretary, respectively, became personally liable for the face of the note."
A corporation lawfully organized in another American State, by persons resident in that State, when the organization is consummated in the State of incorporation, may lawfully transact in Florida business authorized by the corporate charter and the laws of the State of incorporation, provided it be not in contravention of our laws or of public policy. Duke v. Taylor, 37 Fla. 64, 19 So. 172, 31 L. R. A. 484, 53 Am. St. Rep. 232.
While it is true, as contended by plaintiff in error, that Section 6026 (4095) Compiled General Laws of Florida, 1927, provides that:
"No foreign corporation shall transact business, or acquire, hold or dispose of property in this State until it shall have filed in the office of the Secretary of State a duly authenticated copy of its charter or articles of incorporation, and shall have received from him a permit to transact business in this State;"
and makes it a misdemeanor for the corporation, and its officers and agents, to violate this prohibition, it is equally true that Section 6029 (4098) provides as follows:
"The failure of any such foreign corporation to comply with the provisions of this article shall not affect *Page 439 the validity of any contract with such foreign corporation, but no action shall be maintained or recovery had in any of the courts of this State by any such corporation, or its successors or assigns, so long as such foreign corporation fails to comply with the provisions of this article."
Chapter 5717, Acts of 1907, declared unenforceable the corporation contracts entered into in this State by a foreign corporation neglecting to file in the office of the Secretary of State a certified copy of its charter and to pay the State tax and other fees. The hardships resulting from Chapter 5717 brought about the enactment of Chapter 6875, Laws of Florida, 1915, Section 4, of which was amended by Chapter 6875, Laws of Florida, 1915, and the amended section now constitutes Section 6029, Compiled General Laws of Florida, 1927, quoted above. This section provides in no uncertain terms that the failure of a foreign corporation to file in the office of the Secretary of State a certified copy of its charter, etc., shall not affect the validity of any contract with such foreign corporation.
The fact that at the time the foreign corporation gave its promissory note to Herbert H. Pape, Inc., it had not filed in the office of the Secretary of State a certified copy of its charter and paid the state tax and other fees does not make its president and secretary who executed the note in its name, on its behalf, by its authority, and for a consideration moving exclusively to it, personally and individually liable for the face of the note.
Where signatures of individuals appearing immediately under the name of a corporation on an instrument, are preceded by the word "By" and followed by the words "President" and "Secretary," respectively, such words indicate that the parties signed in a representative capacity, and the individuals so signing are not liable on the instrument, if they were duly authorized. Section 6780 (4694) Compiled General Laws of Florida, 1927; I. W. Phillips Co. v. Hall, 99 Fla. 1206,128 So. 635. *Page 440
In an additional memorandum submitted to the court by Commissioner MATHEWS, he further elucidates his views by the following cogent observations:
"The parties here sought to be charged, have dealt in the name of the corporation and not individually."
Fundamentally the principle of law is that one professing to act as agent, unless he binds his principal is ordinarily held to bind himself.
In Phillips v. Hall, 99 Fla. 1206, 128 So. 635, an agent acting for and in the name of an unincorporated organization was held personally liable. In Duke v. Taylor, 37 Fla. 64, 19 So. 172, the foreign corporation had never been legally organized. There the officers were held personally liable.
Since the amendment of 1915, the failure of a foreign corporation to qualify, does not affect the validity of any contract with the corporation, but it cannot maintain action in this State until its qualifies. Section 6029, C. G. L.; Bank v. Jordan, 71 Fla. 566, 71 So. 760.
If incorporated and organized in the foreign State (thereby becoming a legal entity) it may transact business in Florida * * * provided its acts be not in contravention of our laws or of public policy. Duke v. Taylor, supra.
In Duke v. Taylor, it was also said (37 Fla. 72 text):
"Our general incorporating laws recognize the transaction of business by foreign corporations in this State and in the absence of express legislative assertion to the contrary, the courts of this State would be bound to recognize the comity existing among the states."
A foreign corporation may be sued and may defend suits brought against it in this State without qualifying to do business here. Brecht v. Bur-Ne Co., 91 Fla. 345, 108 So. 173.
It is to be noted that our statute penalizes the doing of business here without qualifying but does not make the contracts void. It would seem, if the agent in the name of his principal made a valid and binding contract, such *Page 441 agent ought not to be held personally liable where the party with whom he is dealing is put on notice that he is dealing with a corporation and has knowledge of the fact that the contract is binding upon the corporation and that the corporation can be sued thereon. See Annotations 51 A. L. R. 376, with regard to personal liability of stockholders, officers, or agents for debt of foreign corporation doing business in the State; and Division 4 of the same note, page 385, with regard to liability of directors, officers and agents where corporation fails to comply with laws. The Florida cases are discussed in the first column ib. page 385.
It may be said from said note, I think, that the states generally by reason of comity and the close proximity of the states, recognize the validity of the corporation when fully incorporated in a sister state; that by the weight of authority, in the absence of statute making special provision for the liability of its officers, the officers and agents of a corporation who transact business in the name of a corporation are not personally liable for the contracts so entered into by reason of the corporation not having qualified to do business in the forum state.
It is to be noted that there are some authorities to the contrary and that by statutes in Colorado, North Dakota, Virginia and possibly one or two other states, the officers dealing in the name of the corporation are held liable as partners where the corporation has not qualified. We have no such statute in Florida.
Under the old corporation act in Florida, where the corporation had not been fully organized or the affidavit of 10% had not been filed, there was a special provision of the statute which provided that the incorporators in the absence of the 10% affidavit etc. were to be held liable as partners.
As stated, with the comity existing between the states, and their nearness to each other and in this age of rapid transportation; thus effectively bringing the states nearer *Page 442 to each other, I do not believe the court should hold the officers personally liable, in a situation like the case at bar.
Corporations ordinarily are organized for convenience of handling business and to get away from personal liability. To hold the agents liable where the corporation is duly and legally organized as a legal entity and does business here without having qualified, would logically lead to a like decision holding its stockholders and directors liable on the presumed authorization of its corporate acts and thus the result would follow that individuals would be skeptical of, and slow to acquire and hold stock in, corporations, even though duly and legally organized and being a legal entity, lest the corporation might cross the state line and contract with regard to some matter of business for which they would be held personally liable.
For the reasons above pointed out, I think the pleas were good, and that the judgment should be affirmed.
TERRELL, J., concurs.