Opinion
February 7, 1950. Rehearing Denied March 4, 1950.
Appeal from the Circuit Court for Dade County, Acquilino Lopez, J.
Robert H. Givens, Jr., Miami, for appellant.
Loftin, Anderson, Scott, McCarthy Preston, Miami, for appellee.
The record in this case discloses that the Frango Corporation, a Panamanian corporation, obtained a judgment against Arthur Schwartz in the Circuit Court of Dade County, Florida, in the sum of $9,022.87, with interest after March 1, 1949. The plaintiff below, as the owner of the motor vessel Fordham, chartered the same to the defendant for a period of six months, beginning July 5, 1946, at an agreed sum of $11,000.00 per calendar month. The appellant-defendant kept the Fordham from July 5, 1946, until September 9, 1946. The appellant paid part of the agreed charter rentals and the judgment appealed here is the remaining sum due for the use of the Fordham for the period of time used by the appellant-defendant.
The charter contract of the parties provided, in part, that the Fordham was to be used in lawful trades "between safe port and or ports in United States of America and or West Indies, and or Central America and or Caribbean Sea and or Gulf of Mexico and or Mexico and or South America not south of Demeraua". The Fordham, according to the record, was used during the period in transporting bananas from the Caribbean areas into the port of Miami, Florida. The defendant resided in Miami, Florida, and had other boats engaged in the transportation of bananas.
The defendant-appellant filed an amended motion to dismiss the suit in the lower court because: (1) the plaintiff was a foreign corporation organized and existing under the laws of the Republic of Panama; (2) that the charter described in the declaration, on which plaintiff's cause of action is based, involved the hire of the motor vessel Fordham to the defendant for a period of six months; that said charter provided that said vessel was to be placed at the disposal of the defendant at Miami, Florida, and that upon expiration of the charter it was to be returned to the plaintiff either at Miami, Florida, or a safe U.S. Gulfport or a safe Mexican Gulfport, at the defendant's option; that the arrangements for said charter were made at Miami, Florida, by and through one Louis Spitzer acting as agent for J.F. Whitney Company, who at the time were plaintiff's brokers; that the said Louis Spitzer maintained an office in the Seybold building, at Miami, Florida, and conducted his business as such agent, including the making of the arrangements for said charter, at said office; that by reason of the foregoing plaintiff was engaged in business in the State of Florida, within the meaning of Chapters 47, 610 and 613, Florida Statutes Annotated, at the time of the execution of said charter; and (3) that plaintiff has not complied with the provisions of Sections 47.34, 47.35, 47.36, 610.08, 613.01 and 613.04, Florida Statutes Annotated, as more fully appears in Certificate of the Secretary of State attached to the original motion to dismiss filed herein as Exhibit "A", and is not exempt from the provisions of said statutes. Attached to the motion to dismiss was a certificate made by the Honorable R.A. Gray, Secretary of State of the State of Florida, to the effect that the Frango Corporation had not paid the required statutory fees and had not received a permit to transact business in the State of Florida as a foreign corporation. Counsel for the respective parties are in accord on the point that the Frango Corporation is not authorized to transact business in the State of Florida as a foreign corporation.
Counsel for defendant-appellant renewed his motion to dismiss the cause on the ground that the Frango Corporation was a foreign corporation and not authorized by law to transact business in the State of Florida after the evidence of the parties had been submitted to the jury and again in the motion for a new trial after the rendition of the jury's verdict. The trial court denied the defendant's motions on the theory that the business transacted by the Frango Corporation, as provided for in the charter contract, was interstate trade or business and not intrastate trade or business.
Section 610.07, F.S.A., requires all corporations, foreign and domestic, with enumerated exceptions, to file with the Secretary of State of the State of Florida, on July 1st of each year a capital stock return. Section 610.08 requires corporations to pay certain capital stock taxes. Section 610.11 provides that "any corporation failing to comply with the provisions of this law for six months * * * shall not be permitted to maintain any action in any court in this state until such reports are filed and all fees due under this chapter paid." Section 613.01, F.S.A., provides that the failure of any foreign corporation to comply with the provisions of this Chapter shall not affect the validity of any contract with such foreign corporation, but no action shall be maintained in the courts of Florida by any such corporation so long as such foreign corporation fails to comply with the provisions of this Chapter. See Sections 47.34, 47.35, 47.36, 47.43, F.S.A.
Counsel for defendant-appellant contends that the evidence adduced by the respective parties before the court and jury during the progress of the trial, coupled with a reasonable construction to be placed on all the testimony and exhibits, when considered in their entirety, is that the Frango Corporation was engaged in intrastate business and could not maintain the suit at bar without at least a substantial compliance with the above-cited statutes. Counsel for plaintiff-appellee contends that a fair and reasonable construction to be placed on all the testimony shows that the appellee was engaged in interstate trade or business and therefore not required to comply with the cited statutes. The trial court sustained the appellee's construction of the testimony and our study of the record leads us to the conclusion that there is substantial testimony to sustain the views of the trial court. See Circular Advertising Co. v. American Mercantile Co., 66 Fla. 96, 63 So. 3; Diaz v. Parkland Estates, 114 Fla. 273, 154 So. 199; Irwin v. Gilson Realty Co., 117 Fla. 394, 158 So. 77; Mergenthaler Linotype Co. v. Gore, 118 Fla. 889, 160 So. 481; Crockin v. Boston Store of Ft. Myers, Inc., 137 Fla. 853, 188 So. 853.
The judgment of the lower court is affirmed.
ADAMS, C.J., HOBSON J., and TILLMAN, Associate Justice, concur.