Plaintiff in error, vice president of the payee and acting for it, sued Mrs. Orloff, in the circuit court, Wayne county, Michigan, on her promissory note, payable to the Commercial Investment Trust, or order, executed at Detroit, Mich., July 22, 1921. She defended upon the ground, among others, that the payee was a foreign corporation within the meaning of the Michigan statutes; that it had not complied therewith, and, consequently could not maintain the action. Both the trial and Supreme Court of the state sustained this defense.
Relevant provisions of the statutes follow (Compiled Laws Mich. 1915):
'Sec. 9063. It shall be unlawful for any corporation organized under the laws of any state of the United States, except the state of Michigan, or of any foreign country, to carry on its business in this state, until it shall have procured from the secretary of state of this state a certificate of authority for that purpose. * * *'
'Sec. 9068. No foreign corporation, subject to the provisions of this act, shall be capable of making a valid contract in this state until it shall have fully complied with the requirements of this act, and at the time holds an unrevoked certificate to that effect from the secretary of state.'
'Sec. 9071. The term 'corporations' as used in this act shall be construed to include all associations, partnership associations and jointstock companies having any of the powers or privileges of corporations, not possessed by individuals or partnerships, under whatever term or designation they may be defined and known in the state where organized.'
The Commercial Investment Trust-hereinafter the Trust-is of the class commonly known as 'Massachusetts trusts' or 'common-law trusts.' The following statement sufficiently indicates the general features of the lengthy 'agreement and declaration of trust' under which it was organized at Boston, Mass., March 29, 1915.
The business of the association shall be conducted under the name specified for the trustees in their collective capacity-the Commercial Investment Trust. They may adopt another. Seven are designated; their successors shall be elected for terms of two years at annual shareholders' meetings, each share being entitled to one vote, which may be cast by proxy.
Wide powers are granted to the trustees to buy and sell stocks, bonds, negotiable securities, personal and real property, to loan money, etc., and generally to manage and conduct the trust as fully as if they were the absolute owners of the estate; also they shall have power, but without obligation on their part, to execute any and all instruments and to do any and all things not inconsistent with the provisions hereof, the execution or performance of which they may deem expedient. They may appoint and define the duties of officers and agents. 'But the trustees shall not have any power or authority to borrow money on the credit or on behalf of the shareholders or to make any contract on their behalf for repayment of any money raised by mortgage, pledge, charge or other incumbrances in pursuance of the provisions hereof, or to make any contract or incur any liability whatever on behalf of the shareholders or binding them personally.'
'Trustees shall hold the legal title to, and have the absolute and exclusive control of, all property at any time belonging to this trust subject only to the specific limitations herein contained; they shall have the absolute control, management and disposition thereof.'
'The death or resignation of the trustees, or any of them, shall not operate to annul the trust or to revoke any existing agency created pursuant to the terms of this instrument.'
'Every note, bond, contract, instrument, certificate, share or undertaking and every other act or thing whatsoever executed or done by the trustees or any of them in connection with the trust hereby created, shall be conclusively taken to have been executed or done only in their or his capacity of trustee or trustees under this agreement and such trustee or trustees shall not be personally liable thereon.' The trustees and shareholders are exempted from personal liability.