poration for the purchase price of fruit and other expenses incurred by him, is doing business in the state.19 And so is a foreign railroad corporation which owns and operates a railroad situated wholly in another state, but maintains its general offices in this state, at which all of its corporate business is transacted except the mere physical operation of the road itself,20 or maintains a freight and passenger office in charge of a person designated as its general agent, who solicits freight and passenger business for it, and issues bills of lading for freight to be transported over its line.1 And a corporation which, through one of its officers, makes a contract in the state for the manufacture of articles and the delivery of the same to it on the cars here may be sued here in an action arising out of such contract, though it has no regularly established place of business in the state.2

But the mere purchase by a foreign corporation in this state of commodities to be shipped to it at its domicile in another state does not constitute doing business in this state.

Nor is

a foreign corporation carrying on business in the state because sales of goods manufactured by it in another state, and to be delivered on cars at the factory, are made in this state by a broker, who is not its agent, at prices furnished by it plus a commission fixed by the broker; nor because it sells goods to a resident of this state on order sent to it by mail, which goods become the property of the purchaser and are sold by him for his own account, though it knows that the purchaser has designated himself on letter-heads as the agent of the seller, and though the purchaser is given the exclusive right to sell the articles manufactured by the foreign company in a limited territory;5 nor because it acts as trustee for bondholders under a trust deed

19. Chas. Ehrlich & Co. v. J. Ellis Slater Co., 183 Cal. 709, 192 Pac. 526. 20. Bullfrog Goldfield R. Co. v. Jordan, 174 Cal. 342, 163 Pac. 40. 1. Mauser v. Union Pac. R. Co., 243 Fed. 274; Denver & R. G. R. Co. v. Roller, 100 Fed. 738, 41 C. C. A. 22.

2. Premo Specialty Co. v. Jersey-Creme Co., 200 Fed. 352, 43 L. R. A. (N. S.) 1015, 118 C. C. A. 458.

3. Moon v. Martin, 185 Cal. 361, 197 Pac. 77.

4. Doe v. Springfield Boiler & Mfg. Co., 104 Fed. 684, 44 C. C. A. 128.

5. Jameson v. Simonds Saw Co., 2 Cal. App. 582, 84 Pac. 289.

executed to it as security for a bond issue of a domestic corporation; nor because it takes a single assignment of a contract in part liquidation of an indebtedness owing to it, or makes a single sale of land owned by it in the state, where it is not engaged in the business of buying and selling land.

§ 635. Actions by and Against-In General.-A transitory action may be maintained against a corporation in any state where jurisdiction can be obtained by proper service upon it.9

In the absence of any statutory inhibition, the doctrine of comity permits foreign corporations which have entered this state and done business here to maintain and defend actions arising out of such business. And a statute purporting to curtail the privilege by imposing conditions precedent will not be construed to extend beyond the plain meaning of its terms considered in connection with its objects and purposes.10

Such a corporation which has complied with the statutory requirements and is lawfully doing business in the state is deemed to be within the state for all purposes of suit with respect to matters growing out of such business.11 By accepting the privilege tendered it under our laws of doing business and prosecuting that business here through a resident managing agent, it submits itself to the laws of this state and to the jurisdiction of the courts, and is subject to the control and effect of local process. And this is equally true in respect of process in suits instituted against such corporation in this state, and in respect of process generally, such as the publica

6. Equitable Trust Co. v. Western L. & P. Co., 38 Cal. App. 535, 176 Pac. 876 (within the meaning of former section 408 of the Civil Code). 7. Kimball Co. v. Read, 43 Cal. App. 342, 185 Pac. 192.

8. General Conference of Free Baptists v. Berkey, 156 Cal. 466, 105 Pac. 411.

9. Denver & R. G. R. Co. v. Roller, 100 Fed. 738, 41 C. C. A. 22 (action for tort committed in another state). Mauser v. Union Pacific R. Co., 243 Fed. 274.

10. American De Forest etc. Tel. Co. v. Superior Court, 153 Cal. 533, 126 Am. St. Rep. 125, 27 L. R. A. (N. S.) 1117, 95 Pac. 15.

11. Harrigan v. Home Life Ins. Co., 128 Cal. 531, 58 Pac. 180, 61 Pac. 99.

tion of notice to the creditors of a deceased person to present their claims against his estate.1

12

§ 636. Statutory Limitations on Right to Sue and Defend.Section 408 of the Civil Code provides that any foreign corporation which has not complied with the provisions of sections 405 and 406 of that code cannot "maintain or defend any action or proceeding concerning its property in this state or any intrastate business or transaction, in any court of this state."13 This provision has no application to actions in respect of transactions in interstate commerce.14 It does not make compliance with the statutory requirements a condition precedent to the right to commence an action, and a corporation which complies with the statute after it commences an action may thereafter maintain it.15 Nor will the fact that one of two foreign corporation plaintiffs has not complied with the statute preclude the other from maintaining the action, where the disqualified corporation merely acted as agent of the other in respect of the transaction involved.16

It has been said that whether the prohibition against defending an action would authorize a judgment against the corporation as upon a default may be open to question, and that it is not to be supposed that the legislature intended thereby to deprive the corporation of the protection of the law, or that its property might be confiscated through the forms of law without any right to defend against the same; 17 also that to prevent the corporation from defending actions brought against it would be to deny the equal protection of the laws and to deprive it of its property without due process of law.18

12. Tropico Land & Improv. Co. v. Lambourn, 170 Cal. 33, 148 Pac. 206. 13. This provision was added by Stats. 1927, chap. 222, approved April 20, 1927. For provisions of Civ. Code, §§ 405 and 406, see supra, §§ 628, 629.

14. See supra, § 621.

15. Ward Land & Stock Co. v. Mapes, 147 Cal. 747, 82 Pac. 426; Black v. Vermont Marble Co., 1 Cal. App. 718, 82 Pac. 1060.

16. Republic Truck Sales Corp. v. Peck, 194 Cal. 492, 229 Pac. 331.

17. Black v. Vermont Marble Co., 1 Cal. App. 718, 82 Pac. 1060.

18. American De Forest etc. Tel. Co. v. Superior Court, 153 Cal. 533, 126 Am. St. Rep. 125, 27 L. R. A. (N. S.) 1117, 95 Pac. 15.

§ 637. Necessity That Corporation be Doing Business in State. The courts of this state can acquire jurisdiction to render a personal judgment against a foreign corporation otherwise than by its voluntary appearance only when it is doing business in the state,19 even where service is made upon the secretary of state,20 and only where the cause of action arose from the business done in this state.1 And on motion to quash the service upon such a corporation the burden is upon the plaintiff to prove that it was doing business in the state where it denies that such was the case. But the objection that the corporation was not doing business in the state so as to justify service upon it through its managing agent may be waived by it, and is waived by failing to state such objection as a ground of its motion to quash the service, and to give notice thereof.3

What constitutes doing business in the state is heretofore considered.4

§ 638. Venue.-Since foreign corporations do not reside in this state even though they do business here, and since there is no statute giving them a local county residence here where alone they can be sued, an action against such a corporation

19. Davenport v. Superior Court, 183 Cal. 506, 191 Pac. 911; Carpenter v. Bradford, 23 Cal. App. 560, 138 Pac. 946; R. H. Herron Co. v. Westside Elec. Co., 18 Cal. App. 778, 124 Pac. 455; Dickinson v. Zubiate Min. Co., 11 Cal. App. 656, 106 Pac. 123; Jameson v. Simonds Saw Co., 2 Cal. App. 582, 84 Pac. 289; Walton N. Moore Dry Goods Co. v. Commercial Industrial Co., 276 Fed. 590; Mauser v. Union Pac. R. Co., 243 Fed. 274; Doe v. Springfield Boiler & Mfg. Co., 104 Fed. 684, 44 C. C. A. 128.

20. George Frank Co. v. Leopold & Ferron Co., 13 Cal. App. 59, 108 Pac. 878.

1. Fry v. Denver & R. G. R. Co., 226 Fed. 893, holding that the objection that it did not so arise may be taken by demurrer, where that fact appears on the face of the complaint.

2. Willey v. Benedict Co., 145 Cal. 601, 79 Pac. 270; Jameson v. Simonds Saw Co., 2 Cal. App. 582, 84 Pac. 289.

3. Dickinson v. Zubiate Min. Co., 11 Cal. App. 656, 106 Pac. 123.

4. See supra, §§ 633, 634.

5. See supra, § 616.

6. Thomas v. Placerville G. Q. Min. Co., 65 Cal. 600, 4 Pac. 641; Waechter v. Atchison, T. & S. F. R. Co., 10 Cal. App. 70, 101 Pac. 41..

8

may be tried in any county designated by the plaintiff," subject to the right of the corporation defendant to move for a change of venue on a sufficient showing. And this is true though the corporation has complied with the statute requiring it to file a copy of its charter or articles in the county where its principal place of business is located.9

The provisions of section 16 of article XII of the Constitution, fixing the place where corporations may be sued,10 applies only to domestic, and not to foreign, corporations.11

§ 639. Security for Costs.

Code Civ. Proc., § 1036. "When the plaintiff in an action or special proceeding. . . is a foreign corporation, security for the costs and charges, which may be awarded against such plaintiff, may be required by the defendant. When required, all proceedings in the action or special proceeding must be stayed until an undertaking, executed by two or more persons, is filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action or special proceeding, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the court or judge, upon proof that the original undertaking is insufficient security, and proceedings in the action or special proceeding stayed until such new or additional undertaking is executed and filed."

Code Civ. Proc., § 1037. from the service of notice

"After the lapse of thirty days that security is required, or of

7. Rains v. Diamond Match Co., 171 Cal. 326, 153 Pac. 239; Thomas v. Placerville G. Q. Min. Co., 65 Cal. 600, 4 Pac. 641; Ryan v. Inyo Cerro Gordo Min. & Power Co., 41 Cal. App. 770, 183 Pac. 250; Waechter v. Atchison, T. & S. F. R. Co., 10 Cal. App. 70, 101 Pac. 41 (holding that Civ. Code, § 407, did not change the rule as to foreign railroad corporations); Ludington Exp. Co. v. La Fortuna etc. Min. Co., 4 Cal. App. 369, 88 Pac. 290.

8. Rains v. Diamond Match Co., 171 Cal. 326, 153 Pac. 239; Thomas v. Placerville G. Q. Min. Co., 65 Cal. 600, 4 Pac. 641.

9. Ryan v. Inyo Cerro Gordo Min. & Power Co., 41 Cal. App. 770, 183 Pac. 250; Waechter v. Atchison, T. & S. F. R. Co., 10 Cal. App. 70, 101 Pac. 41, both decided under Civ. Code, § 488, prior to its repeal. As to present statute, see supra, § 628.

10. See infra, § 647.

11. Waechter v. Atchison, T. & S. F. R. Co., 10 Cal. App. 70, 101 Pac. 41.