that the election would have resulted otherwise had this irregularity not taken place. While we do not mean to approve of irregular registration lists or irregular modes of conducting an election, we cannot say that the omission here referred to was such as to invalidate the entire election and authorize the plaintiffs to treat it as a nullity or as conferring no power on the local officers to act under the due declaration of the result."

Where a statute required the registration books for thirty days before a proposed election and required a notice of thirty days of the time of closing the books, it was held that the failure to comply with the statute invalidated the election. State v. Stromme, 49 Mont. 25, 139 Pac. 1002. Compare Epping v. Columbus, 117 Ga. 263, 43 S. E. 803.

Failure to Register.

The prevailing rule is that where a voter has failed to register and has not when casting his ballot given the oath or affidavit required of nonregistered voters by the statute, his vote is illegal. Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95; Bichford v. Ward County, 20 N. D. 634, 127 N. W. 103; In re Duffy, 4 Brewst. (Pa.) 531; In re Middendorf, 4 Pa. Dist. 78; In re Wilkes-Barre Tp. 4 Kulp (Pa.) 196; In re Barber, 10 Phila. 579, 31 Leg. Int. 300, 3 Luz. Leg. Reg. 153, affirmed 7 Leg. Gaz. 126, 32 Leg. Int. 229, 22 Pitts. Leg. J. 195; In re McDonough, 105 Pa. St. 488; In re School Directors, 18 Phila. 458, 42 Leg. Int. 304; State v. Hilmantel, 21 Wis. 566. See also Webster v. Byrnes, 34 Cal. 273; Falltrick v. Sullivan, 119 Cal. 613, 51 Pac. 947; People v. Kopplekom, 16 Mich. 342; Zeiler v. Chapman, 54 Mo. 502; People v. Wilson, 62 N. Y. 186. Compare Dale v. Irwin, 78 Ill. 170; Clark v. Robinson, 88 Ill. 498; Kuykendall v. Harken, 89 Ill. 126; Gillin v. Armstrong, 12 Phila. 626, 35 Leg. Int. 282. And compare the reported case.

The fact that no registration of electors has been had as required by the statute avoids an election. Nefzger v. Davenport, etc. R. Co. 36 Ia. 642; Early v. Rains, 121 Ky. 439, 89 S. W. 289, 28 Ky. Law. Rep. 415; DeHaven v. Bowmer, 125 Ky. 800, 102 S. W. 306, 31 Ky. L. Rep. 416; Endom v. Monroe, 112 La. 779, 36 So. 681; People v. Kopplekom, 16 Mich. 342; State v. Albin, 44 Mo. 346; Zeiler v. Chapman, 54 Mo. 502; Pitkin v. McNair, 56 Barb. (N. Y.) 75; McDowell v. Massachusetts, etc. Const. Co. 96 N. C. 514, 2 S. E. 351; State v. Scarborough, 110 N. C. 232, 14 S. E. 737. See also People v. Canady, 73 N. C. 198, 21 Am. Rep. 465. Compare Pickett v. Russell, 42 Fla. 116, 28 So. 764; Campbell v. Braden, 31 Kan. 754, 3 Pac. 542; State v. Piper, 17 Neb. 614, 24 N. W. 204. Thus in McDowell v. Massachusetts, etc. Const. Co.

supra, it was said: "Opportunity must be offered to all persons eligible to become qualified voters, to register as such, next before each election, as prescribed by law. The law encourages electors to vote, and it provides and intends that each person eligible shall have opportunity to qualify himself to that end, before an approaching election. And if such opportunity shall be withheld or denied, on purpose, by accident, or by inadvertence, such denial would vitiate and render void the election, certainly if such denial should materially affect the result." And in DeHaven v. Bowmer, supra, the court in holding that the failure to order a registration for a special election invalidated the election said: "When an election is held in territory embracing a part of a city, the voters residing within the city cannot vote unless they shall have presented to the election officers their certificates of registration, and that when a special election is ordered, a special registration must be ordered as provided in section 1495 of the Kentucky Statutes. The lower court was correct in holding that the failure to provide for a special registration and in allowing voters who resided within the corporate limits of Cloverport to vote without presenting their registration certificates invalidated the election. The judgment is affirmed." So in Zeiler v. Chapman, 54 Mo. 502, the court said: "The second question presented is as to the result of the election in Dover Township or precinct. There the supervisor of registration refused to perform the duties imposed upon him by law. We adhere to the decisions of this court heretofore made on this registration law. that no votes can be counted where they have not been registered; and therefore the circuit court decided correctly, that the contestee was not elected, because his majority was the result of counting nonregistered votes. The act is peremptory on this subject, and requires registration before voting. But we do not concede that registration officers can defeat the will of the people by absenting themselves from the place of registration or resigning. If this can be done, elections are a farce dependent entirely on the officers selected to carry out the law. They may decline registration in a precinct, which they know to be hostile to their views, and thus defeat the votes of all the qualified voters at said precinct. This is not the object or intent of the registration law. We assume that a bona fide registration was designed, and every facility is afforded to attain this object. Whilst, therefore, we hold with the circuit court, that nonregistered votes could not be counted, we also hold, that the refusal to comply with the law on the part of the officers of registration rendered the election void, and that the contestor in this case was not elect

ed. As the contestee in this case received the certificate of election and was commissioned, prima facie he was entitled to the office. A proceeding on the part of the state might have been instituted to oust him. There was really no election, as the officers appointed to supervise the registration failed or refused to perform their duty. It was never intended we presume to place it in the power of the registering officers to defeat the will of the electors by refusing or failing to perform the duties imposed on them by law. This would be an outrage on the principle of popular election which the law concedes. The only effect of no registrations in a case such as this, where no registration is possible, is to render the election a nullity. The circuit court refused to count the votes which were not registered, and in this we think the circuit court was right, but this did not give the contestant the office, when it was shown, that the nonregistered voters had no power of registering by reason of the failure on the part of the registering officers. To hold otherwise would be to submit the result of all elections to the officers of registration, who could attend at such precincts as they pleased, and refuse to attend to such as they thought unfavorable to their views, and a small minority of the electors could in this way elect. This was not the intent of the law, and although nonregistered voters cannot be counted, we think the election is void where the registration officer fails to perform his duty." Likewise in People v. Kopplekom, 16 Mich. 342, it was held that the failure to make a registration of voters in a township rendered all the votes received in that township invalid. In State v. Scarborough, 110 N. C. 232, 14 S. E. 737 it was held that the vote cast in a township was invalid because there had been no registration of the electors, but it was said that the rule might be different had there been a fraudulent conspiracy to deprive the voters of the precinct the right to suffrage.

In State v. Board of Canvassers, 78 S. C. 461, 13 Ann. Cas. 1133, 59 S. E. 145, 14 L.R.A. (N.S.) 850, it appeared that a statute required voters at an election to have registration certificates, and votes were received from unregistered persons who had certificates from the county clerk which entitled them to be registered. It was held that the votes were invalid.

STANDARD FASHION COMPANY

V.

CUMMINGS.

Michigan Supreme Court-July 23, 1915.

187 Mich. 196; 153 N. W. 814.

Failure to ComPleading Non

Foreign Corporation ply with Statute compliance. Where an action by a foreign corporation was begun in justice court, and the circuit court on appeal stated that the corporation had not filed any copy of its articles of incorporation, as required by statute, the Supreme Court, on writ of error to review a judgment for defendant, will determine the right of the corporation to maintain the action, though not complying with the statute, though the defense of noncompliance was not affirmatively pleaded.

What Constitutes Doing Business in State.

A contract between a foreign corporation manufacturing Standard patterns, and a resident of the state, which recites that the corporation grants to the resident an agency for the sale of the patterns in a city for a specified term, and from year to year thereafter, until termination of the agreement, and which binds the corporation to sell and deliver, f. o. b. at points outside of the state, the patterns to the resident at a specified discount from retail prices and advertising matter at prices fixed, and to allow the resident to return semiannually discarded patterns on terms specified, does not contemplate the carrying on by the corporation of intrastate commerce, but the corporation, in performing its part of the contract, is engaged in interstate commerce, and may sue on the contract without complying with Pub. Acts 1901, No. 206, as amended by Pub. Acts 1903, No. 34, regulating the right of foreign corporations to carry on business in the state.

[See note at end of this case.]

Error to Circuit Court, Wayne county: MURPHY, Judge.

Action on contract. Standard Fashion Company, plaintiff, and Mary E. Cummings, defendant. Judgment for defendant. Plaintiff brings error. The facts are stated in the opinion. REVERSED.

Raymond E. Van Syckle for plaintiff in

error.

Arthur H. Covert for defendant in error.

[196] STONE, J.-The plaintiff, a New York corporation, brought suit in assumpsit in justice's court, declaring orally on all the common counts, and specially on the contract hereinafter set forth. Defendant pleaded the

general issue. From a judgment for defendant, after [197] a trial upon the merits, plaintiff appealed to the circuit court. Plaintiff's case upon trial in the circuit court was substantially as follows: Prior to January 23, 1907, plaintiff had sold to I. Jay Cummings, who owned and conducted a retail store at Paw Paw, Mich., a stock of paper patterns amounting to $150, of which $75 remained unpaid. On that date Cummings entered into a written contract with plaintiff, signed by plaintiff's traveling representative, as follows:

"Mutual agreement between the Standard Fashion Company of New York, first party, and I. Jay Cummings of Paw Paw, State of Michigan, second party.

"First party hereby grants to the second party an agency for the sale of Standard Patterns for in the city of Paw Paw, State of Michigan, for three years from date hereof, and from year to year thereafter until this agreement is terminated, as hereinafter provided, and agrees to sell and deliver f. o. b. New York, or at Chicago, Ill., to second party, Standard Patterns at a discount of fifty per cent. from retail prices, and advertising matter at the prices and on the conditions named on the reverse side hereof; also such other publications as may be issued by first party, at regular agent's rates; to allow second party to return discarded patterns semi-annually, between January 15th and February 15th, and July 15th and August 15th, in exchange at nine-tenths cost for other patterns to be shipped at the time of return or thereafter, but not in exchange for other goods than patterns. Patterns returned for exchange must have been purchased by second party from first party direct and must be delivered in good order to first party at its general office in New York.

"Second party agrees, in consideration of the above to purchase from the first party, for free distribution, Standard fashion sheets to a number not less than three thousand (3,000) per annum, and handy catalogues to a number not less than per annum, to

pay transportation charges on all goods ordered or returned under this agreement; to purchase and keep on hand at all times, except during the periods of exchange specified above, one hundred fifty (150) dollars' [198] value in Standard patterns, at net invoice prices, and to pay first party for a pattern stock of the amount stated above, to be selected by the first party, the terms of payment to be as follows: dollars at time of signing this contract, and dollars in thirty days after shipment of stock, in regular monthly account as herein provided, the balance of the purchase price, seventy five (75) dollars, to remain unpaid, as a stand

ing credit, during the continuance of this agreement, and to become due and payable at its termination, second party to pay interest on this standing credit at the rate of 5 per cent. per annum on January 15th of each year; all other purchases to be paid for on or before the 15th day of the month succeeding the date of shipment.

"Second party also agrees not to assign or transfer this agency, nor to remove it from its original location without the written consent of said first party, not to sell or permit to be sold on the premises of second party, during the term of this contract, any other make of patterns and not to sell Standard Patterns except at label prices. Second party further agrees to permit first party or its representative to take account of pattern stock whenever it desires, to pay proper attention to the sale of Standard Patterns, to conserve the best interests of the agency at all times, to reorder promptly all patterns as sold, and to give the department a prominent position on the ground floor in the store.

"Either party, desirous of terminating this agreement, must give the other party three months' notice in writing, within thirty days after the expiration of any contract period as above specified, the agency to continue regularly during such three months. Upon expiration of such notice, second party agrees to promptly return to first party all standard patterns bought under this contract and then on hand, which first party agrees to credit on receipt in good order at three-fourths cost, paying to second party, within thirty days after receipt of same, in cash, any balance due. Neglect to return the pattern stock within two weeks after expiration of three months' notice shall relieve first party from all obligation to redeem the same. Failure to require compliance with the strict [199] letter of this agreement shall not constitute a waiver of any condition nor forfeit nor prejudice any right hereunder.

"It is hereby acknowledged by both parties that there are no verbal understandings between them conflicting with this contract. "Dated January 23rd, 1907.

"Done at New York, State of N. Y.
"Standard Fashion Company,
"Per A. J. Connell
"[First Party.]

"In lots of 1,000 and over per month, front card and upper portion of back page printed with agent's advertisement, which may be changed quarterly (without extra charge).

"In lots of 2,000 and over per month, front card and upper portion of back page printed with agent's advertisement, which may be changed monthly (without extra charge).

"Copy of advertisement for March issue must be in our hands by January 15th, to insure insertion. Make some allowance of time on all changes of advertisements. We reserve the right to repeat last advertisement if change is not received by us in due time.

"Fashion Sheets: In lots of less than 500 of one issue, without extra printing; 50 cents per hundred; blank space on front page in which merchant may stamp his business card. When 250 or more of one issue are ordered, merchant's card will be printed on front page at a charge of 50 cents for each printing.

"Handy Catalogues: (Issued February and August.) $2.00 per hundred, with agent's card printed on first page of cover on orders of 100 or over of one issue, and entire last page of cover in addition, with [200] same advertisement as running on sheets, when 500 or more are ordered of one · issue."

Subsequent to signing this contract Cummings carried in stock patterns he procured from plaintiff, until his death on September 28, 1908, before the contract terminated. After Cummings' death there was evidence tending to show that the business was conducted by the widow, the defendant, on her own personal responsibility, until she sold out the business in November, 1909. During that period she ordered and received patterns from the plaintiff, by mail, from time to time, in accordance with the terms of the contract. There was evidence tending to show that both parties treated the contract as subsisting. Between November 1 and December 10, 1909, defendant sold the business, returning no patterns to the plaintiff. Upon the original contract there was claimed to be due the $75 remaining unpaid at the time the contract was signed, and $2.62 for patterns later ordered.

At the conclusion of plaintiff's testimony, the trial court granted defendant's motion for a directed verdict in her favor, on the sole ground that plaintiff, a foreign corporation, was carrying on business in Michigan without having complied with the requirements of Act No. 206, Pub. Acts 1901, as amended by Act No. 34, Pub. Acts 1903, and was therefore precluded from maintaining this action. By the charge of the court it appears that its decision was based solely upon the ground above stated. In its charge the court said: "The position is taken by the defendant that the plaintiff, which concededly is a for

eign corporation, is engaged in carrying on its business, or was at the time in issue here, in this State without having first filed in the office of the Secretary of State a certified copy of its charter, or articles of incorporation. It is conceded that the plaintiff has not filed any such copy of its articles of incorporation in this State."

[201] After holding that plaintiff was carrying on its business in this State in violation of the statute, and that such business was not a sale of goods or merchandise which would be protected by the rights of interstate commerce, the court further said:

"This statute provided that any foreign corporation, subject to the provisions of the law in question, shall not maintain any action in this State upon any contract made by it, after the taking effect of this act, until it shall have fully complied with the requirements of the act. Now, not having complied with the requirements of the act, the plaintiff in my view cannot maintain this action. It is precluded by our law from doing it."

A judgment for the defendant was thereupon entered. There was a motion for a new trial, which was denied, the reasons stated for the denial being substantially those contained in the charge of the court. Plaintiff, having excepted to such reasons and the refusal of the court to grant a new trial, brings the case here upon writ of error, and the principal question discussed under appropriate assignments of error is: Was plaintiff carrying on business in this State within the meaning of our statute?

The point is made by plaintiff by assignment of error that this defense, not having been affirmatively pleaded, was improperly before the court under subdivision (c) of Circuit Court Rule 7. But as this case arose in justice's court, and as the learned trial judge stated that it was conceded that the plaintiff had not filed any such copy of its articles of incorporation in this State, we think that we should dispose of the question upon its merits.

It is the claim of the plaintiff that it was not, and the contract did not contemplate, carrying on business in Michigan within the prohibition of the statute, that the business carried on by a foreign corporation in this State, to be unlawful, must be local business, or [202] "intrastate" commerce, and that the importation and sale of goods to residents of Michigan by a foreign corporation constitute interstate commerce, and cannot be prohibited by the act. It is urged that the sale of plaintiff's merchandise to a citizen of Michigan, and its importation were protected by the rights of interstate commerce; that plaintiff did not go further and by the contract provide for the carrying on in Michigan of its

own business through defendant as its agent. We have read this contract with great care in connection with the other evidence in the record, and have also re-examined, not only our own recent cases, but the Federal cases as well. And while it may be said that the instant case is near the border line, yet we are of opinion that it falls within that line of cases holding that where a sale takes place under the circumstances surrounding this transaction, the rule relating to interstate commerce applies. The following Michigan cases have been examined upon this subject: Rough v. Breitung, 117 Mich. 48, 75 N. W. 147; Neyens v. Worthington, 150 Mich. 580, 114 N. W. 404, 18 L.R.A. (N.S.) 142; Haughton Elevator, etc. Co. v. Detroit Candy Co. 156 Mich. 25, 120 N. W. 18; Showen v. J. L. Owens Co. 158 Mich. 321, 122 N. W. 640, 133 Am. St. Rep. 376; Imperial Curtain Co. v. Jacob, 163 Mich. 72, 127 N. W. 772; Despres v. Zierleyn, 163 Mich. 399, 128 N. W. 769; Nernst Lamp Co. v. Conrad, 165 Mich. 604, 131 N. W. 120; E. A. Lange Medical Co. v. Brace, 186 Mich. 453, 152 N. W. 1026. In our opinion, the instant case differs and should be distinguished from the foregoing cases, and is controlled by the decisions relating to interstate commerce. We are constrained to hold that under this contract and the evidence this plaintiff, a foreign corporation, was not doing business in Michigan, but that it sold its goods to I. Jay Cummings, who, it is true, had the exclusive right to sell them, [203] but they were not sold by Cummings for or on account of the plaintiff, but exclusively on account of said Cummings.

In the recent case of E. A. Lange Medical Co. v. Brace, supra, Justice Kuhn reviewed the Federal decisions upon this question. We call attention to the case of Butler Bros. Shoe Co. v. U. S. Rubber Co. 156 Fed. 1, 84 C. C. A. 167, where Judge Sanborn, of the United States Circuit Court of Appeals, reviews the Federal decisions, and also to the case of In re Monongahela Distillery Co. 186 Fed. 220, where Judge Denison, of the United States District Court, again reviews the question, and, referring to the case of Butler Bros. Shoe Company, states that a writ of certiorari was denied in that case by the Supreme Court of the United States, 212 U. S. 577, 29 S. Ct. 686, and also refers to the fact that the case has been cited and followed by the United States District Court in the Western District of Wisconsin, in Atlas Engine Works v. Parkinson, 161 Fed. 223, 229. The question of what is interstate commerce is a Federal question, and the Federal decisions are controlling; but we are of opinion that they are not in conflict with our own cases. Many other cases, Federal and State, might be cited. We content ourselves with citing only the following: Standard Fashion Co. v. Hayes-Brown

Co. unreported opinion of the Supreme Court of Tennessee, rendered July 5, 1907; Standard Fashion Co. v. McLeod, 7 Alberta L. Rep. 145, decision rendered April 25, 1914, in the supreme court of Alberta. Both these decisions reached the conclusion that the transactions under the contracts, similar to the one involved in this suit, amounted to a sale, and fell within the rule applicable to interstate commerce. In the instant case it is true that the written agreement between the plaintiff and Cummings purported to be an appointment [204] by the plaintiff of Cummings as the company's agent; but as was stated in the McLeod Case:

"There is no magic in a word, and we must see the sense of the agreement as a whole." Taking the contract as a whole, the company agreed to sell and deliver, f. o. b. New York, or at Chicago, Ill., to Cummings "Standard Patterns" at a discount of 50 per cent. from retail prices, and also advertising matter at certain prices and on certain conditions, and also such other publications as might be used by the plaintiff at regular agents' rates, Cummings to be at liberty to return discarded patterns semi-annually, between certain dates, in exchange at ninetenths cost for other patterns. Cummings. agreed to purchase from plaintiff for free distribution "Standard Fashion Sheets" to a certain number, to pay transportation charges on all goods ordered or returned under the agreement, etc. We need not repeat all of

the terms of the contract. We cannot doubt that when these articles of merchandise were delivered to Cummings they became his property, and the sales were made on his own account, and not on account of the plaintiff. We are of opinion that the delivery of these goods to the common carrier at the places named to be transported to Cummings at Paw Paw, Mich., was an act of interstate commerce, and so long as the business of plaintiff, a foreign corporation, was limited to the acts of interstate commerce, and did not establish within the State a local agency to represent it in the sale of its goods, wares, and merchandise, it was not amenable to the law of this State requiring foreign corporations, as a condition of transacting business in this State, to file a copy of their charter or articles of association as prescribed by the Michigan act. It is well established that the proper construction of a contract is not dependent upon any name given to the instrument by the parties, or any one provision, but [205] upon the entire body of the contract, and the legal effect of it as a whole. The learned trial court in its charge to the jury seemed to think that if the transaction tended to further the business of the plaintiff within this State, it fell within the terms of our statute. We do not think that a controlling