(dissenting). I am constrained to dissent from the opinion of the majority of the court in this case.
The ground of my dissent is this: Rosenbaum, by this action, *264seeks to liquidate and fix the damages which the defendant company (an insolvent corporation) should be charged with, for the non-performance of a contract made by it with him. The contract contemplated the procurement by Rosenbaum of '•contracts in the state of Massachusetts for the insurance by the company of accounts and credits. Such contracts have been judicially declared by the courts of that state to be unauthorized and unenforceable. In my judgment, it is immaterial whether the lack of authority to make such contracts was properly predicated upon the omission of a legislative grant or not. For it was distinctly decided that if such authority has been given, its exercise in that state was unlawful, unless the contracting company had been admitted to transact such business within that state in the manner required by its laws. Claflin v. United States Credit System Co., 165 Mass. 501.
As it appears that the defendant company was not thus admitted to transact business in that state, its contracts were properly held to be unlawful. Damages for being prevented by the insolvency of the company from procuring contracts, which the company had no lawful authority to make, cannot, in my judgment, be recoverable.
It is proper to add that the question before us was not involved in the previous decisions reported in 31 Vroom 294, or 32'Id. 543.
I therefore vote to affirm the judgment.
For affirmance—Ti-ie Chancellor, Van Syckel,- Hendrickson. 3
For reversal—Dixon, Garrison, Gummere, Collins, Fort, Bogert, Adams, Vredenburgi-i, Voori-iees. 9.