¶1The action is in contract to recover damages for breach of an agreement in which the plaintiff is described as Wilham Mann and Company. It is in these words.
¶2"Buyer
¶3William Mann & Co.
¶488 Broad St., Boston, Mass.
¶5Contract No. 1090 Date April 13th, 1921.
¶6As Brokers we have this day consummated the following transactions between the given parties.
¶7Seller Franco American Union of New England, Box 41 Washington Square, Worcester.
¶8Buyer Messrs. Wm. Mann & Company, 88 Broad St., Boston, Mass.
¶9Merchandise Bordeau Walnut Halvés.
¶10Quality 1920 crop — Mark ‘ Wilman’
¶11Quantity 200 (55# cases) — packed in tins and cased separately.
¶12Price .34c per lb. duty paid Boston.
¶13Terms Net on arrival — subject to inspection.
¶14Shipment Prompt from France.
¶15Brokerage To be paid by Seller.
¶16Buyer has option on 5,000 c/s until arrival and examina*235tian of above shipment. The price on the option is based on todays Exchange and is subject to fluctuation.
¶17This. . . . Contract. ... is made in triplicate one copy sent to the Buyer, one to the Seller, and one retained in this office
¶18Accepted Seller.
¶19F. W. Payne — Franco Amer. Union, (signed) Wm. Mann & Co.
¶20Accepted Buyer
¶21Wm. Mann & Co. per Lutz.
¶22This Sale not Subject to Cancellation (written in ink in margin)
¶23Journal of Commerce this date quotes Paris francs 7.04 7.01”
¶24The contract was prepared and executed in the plaintiff’s office, and at the same time there was delivered by the plaintiff to the defendant a memorandum of the same transaction signed by the plaintiff of the following tenor.
¶25“Franco American Union Ship to William Mann & Co.
¶26At Boston, Mass., 88 Broad St. Salesman Payne Terms arrival draft
¶27200 55# sealed tins Bordeaux walnut meats
¶281920 crop .34
¶29each tin crated separately
¶30duty paid
¶31Ex dock Boston
¶32arrival draft subject to inspection
¶33option on 5,000 c/s until arrival and examination on above shipment subject to fluctuation on rate of exchange cable and Marking address ‘Wilman’
¶34Wm. Mann & Co. Lutz ”
¶35The jury could find that the contract had been broken by the seller entitling the plaintiff to damages, and the question at the trial was. whether the contract was the contract of the defendant alleged in the amended writ as doing business under the firm name and style of Franco-American Union of New England, or whether it was the contract of the Franco-American Union of New York, a New York corporation, *236having a branch office in Worcester in this Commonwealth under the name of the Franco-American Union of New England. The verdict was for the plaintiff, and the defendant's exceptions relate solely to the admission in evidence of a certificate of the Secretary of the Commonwealth, and a copy of the charter of the Franco-American Union of New England, Inc.
¶36While there was evidence that the Franco-American Union of New York did business in Massachusetts, it was not conducted under its true name, but in the name of the Franco-American Union of New England, without filing a business certificate as provided in G. L. c. 110, § 5. It was material therefore for the plaintiff to show that at the date of the contract the Franco-American Union of New England had no legal existence as a corporation. If this appeared, the defendant on the record could be held as principal. Brigham v. Herrick, 173 Mass. 460, 466. The certificate of the Secretary of the Commonwealth and copy of the charter showing that the Franco-American Union of New England was not incorporated until May 2, 1921, accordingly were competent. See G. L. c. 9; § 11, c. 156, § 4; c. 233, § 74. American Steel & Wire Co. v. Bearse, 194 Mass. 596.
¶37 Exceptions overruled.