COBB v. McDONALD-WEIST LOGGING CO., 278 F. 165

ROSS, Circuit Judge. The judgment appealed from in this case affirmed an order made by the referee in bankruptcy, refusing to expunge from the list of claims against the bankrupt a claim filed by the appellee for $27,871.50, with interest thereon from December 20, 1918, at 8 per cent, per annum as a general claim, and remanding the cause to the referee for further proceedings. The contention of the appellant is that tire claim was based on a void contract and therefore unenforceable. Both the appellee and the bankrupt were corporations of the state of Washington.

By the law of Alaska all corporations and joint-stock companies organized under the laws of the United States or the laws of any state or territory thereof were required before doing business within the district of Alaska, to file in the office of the secretary of the district and in the office of the district court of the division wherein they intended to carry on business, certain designated, statements, certificates, and consents, and should forfeit a certain designated amount of money. Comp. Laws of Alaska, § 654. et seq.

Section 657 of such Compiled Laws is as follows: “If any swell corporation or company sliall attempt or commence to do business in the district without having first filed said statements, certificates, and consents required by this chapter, it shall forfeit the sum of twenty-five dollars for every day it shall so neglect to file the same; and every contract made by such corporation, or any agent or agents thereof, during the time it shall so neglect to file such statements, certificates, or consents, shall be voidable at the election of the other party thereto.

It shall be the duty of the United States attorney for the district to sue for and recover, in the name of the United States, the penalty above provided, and the same, when so recovered; shall be paid into the treasury of the United States.” And

section 660 provides that: “If any such corporation or company shall .fail to comply with any of the provisions of this chapter, all its contracts with citizens of the district shall be void as to the corporation or company, and no court of the district, or of the United States, shall enforce the same in favor of the corporation or company so failing.” Since neither of the parties to the contract in question was a citizen of Alaska, we quite agree with the court below that

section 660 of the statute of that territory, making void any and all contracts made with a citizen of that district by a foreign corporation or company failing to comply with the provisions above referred to, has no application to the present case. The provision of

section 657, making every contract entered into by any foreign corporation or company, or by any agent or agents thereof, without having first filed the required statements, certificates, and consents “voidable at the election of the other party thereto,” is also plainly inapplicable to the present case, for the reason, not only that it does not appear that the bankrupt corporation ever elected to treat the contract it made with the appellee as void, but, on the contrary, it affirmatively appears from the record that it accepted the benefit of the contract to a large extent. See

section 6708 of Thompson on Corporations, 2d Ed., and the numerous cases there cited. That the trustee of the bankrupt cannot under such circumstances be permitted to exercise such option is too plain for discussion. The judgment is affirmed.