I concur in the opinion of WILLARD BARTLETT, J., that the statute imposes only on the foreign corporation, which has not complied with the provisions of the laws of this state requisite to entitle it to do business therein, the penalty of being unable to maintain any action upon a contract made by it, not upon the other party to the contract. In other words, it can be sued upon the contract, but cannot sue thereon. Any other view would lead to astonishing results. Citizens of the state dealing with foreign corporations cannot be expected to know or to ascertain whether those corporations have complied with the laws of the state or not. Hence, the contract was enforceable at the option of the plaintiff, and there has been no failure of consideration. But assume that the contract was void, as is the condition under the Statute of Frauds of an oral contract for the sale of land. The vendee cannot enforce it; nevertheless he is not entitled to recover money paid under it unless the defendant refuses to fulfill. This appears to be settled law not only in this state, but throughout the whole country. (Collier v. Coates, 17 Barb. 471; Dowdle v. Camp, 12 Johns. 451; Abbott v.Draper, 4 Den. 51; Erben v. Lorillard, 19 N.Y. 299, 304;Harris v. Frink, 49 N.Y. 24, 29; Richards v. Allen,17 Me. 296; Bennett v. Phelps, 12 Minn. 327; Congdon v.Perry, 13 Gray, 3.) The complaint does not allege that the defendant refused to carry out the contract, and until such refusal plaintiff was not entitled to recover back the money paid under the contract, good or bad.
HAIGHT, WERNER, CHASE and COLLIN, JJ., concur with WILLARD BARTLETT, J., and CULLEN, Ch. J.; VANN, J., concurs in result.
Order reversed, etc. *Page 238