Am. Button Hole Over-Seaming & Sewing Mach. Co. v. Moore

• Decision Date: 24 January 1881
• Citation: 8 N.W. 131,2 Dak. 280
• Court: South Dakota Supreme Court
• Parties: American Button Hole Over-Seaming & Sewing Machine Co. v. Moore and others.

8 N.W. 131

2 Dak. 280

American Button Hole Over-Seaming & Sewing Machine Co.

v.Moore and others.

Supreme Court of the Territory of Dakota.

Filed January 24, 1881.

Appeal of the plaintiff from the judgment of the district court of Clay county.

Discarding the printed abstracts as being, in some respects, inexact and misleading, a true statement of the case can only be reached by reference to the original transcript.

1. The complaint alleges that the plaintiff is a corporation chartered by the state legislature of Pennsylvania, and doing business under the name and style of “The American Button Hole Over-seaming & Sewing Machine Company.”

2. That on or about the twenty-fourth day of November, A. D. 1876, the plaintiff, and the defendant Samuel T. Moore, entered into a written contract, by which the plaintiff agreed to furnish to him such amount of sewing machines, made by plaintiff, as he might require for sale in the village of Vermillion and vicinity; and that said Moore agreed to settle and pay for said sewing machines as in said contract specified-a copy of which contract is given in full, and made a part of the complaint. Neither the complaint, nor the contract itself, discloses at what place the contract was made. The latter states that the plaintiff was chartered in 1867, and is located in the city and county of Philadelphia; also shows that at the time-the twenty-fourth of November, 1876-the defendant Moore was doing business at Vermillion, Clay county, Dakota. Whether the contract was made at Philadelphia, Pa., or within this territory, there is nothing to show. Moreover, by the contract, all sewing machines, etc., manufactured or sold by the company to Moore, were to be supplied and delivered to him at a depot or vessel in the city of Omaha, Nebraska.

3. The complaint further alleges that at the time of execution of said contract, and as security for the full performance of the same on the part of said Moore, that he and Cyrus Snyder and F. N. Burdick did, on said twenty-fourth of November, 1876, make, execute, and deliver to plaintiff a bond in the sum of $1,000, conditioned that if the said Moore shall well and truly perform in all respects the contract hereinbefore referred to, and shall well and truly and punctually pay any notes or obligations given under its provisions, then the said bond shall be void, but otherwise to continue in full force and effect-a copy of which bond is given in full, and is made part of the complaint. Again, neither the complaint nor the bond discloses at what place the latter was executed, whether within or without the territory. All that is shown is that the three obligors then had residence at Vermillion, Dakota.

4. The fourth allegation is that, in pursuance of the contract, plaintiff did, from time to time, furnish the said Moore machines, fixtures, supplies, etc., according to the terms of said contract, as the same were ordered and required by him; and in settlement for said machines, etc., the said Moore did thereafter execute and deliver to plaintiff his six certain promissory notes, each of which is set out, and all are dated at Vermillion, D. T. The first three are of December 1, 1876, and the others bear date January 1, 1877.

5. It is further alleged that no part of said notes and interest has been paid, except the sum of $93.43; and that there is now due and unpaid on said notes, of principal and interest, the sum of $487.56 up to the first of September, 1879, and that defendants have neglected and refused to pay said notes, though often requested so to do.

6. The sixth averment is that on the failure of said Moore to pay the notes, the condition of the bond has been broken, and the damage sustained by plaintiff thereby is the amount of the notes and interest aforesaid.

Wherefore the plaintiff prays that the bond be declared forfeited, and that the plaintiff have judgment against the defendants, jointly and severally, for the sum of $487.56, being the amount of said notes up to the first of September, 1879, etc.

To the complaint, two of the defendants, to-wit, Snyder and Burdick, demurred, on the grounds that it does not state facts sufficient to constitute a cause of action; and, secondly, that plaintiff has not legal capacity to sue, as appears upon the face of said complaint. On the seventh day of February, 1880, the cause coming on to be heard on this demurror, after argument the court below adjudged that the demurrer be sustained; and, the plaintiff “refusing to amend or further to plead, but electing to stand upon or abide by said demurrer,” it was further considered and adjudged by the court that said defendants have and recover of the plaintiff their costs in this action, taxed at $7.50. Although not accurately or properly stated, it is to be presumed that the above judgment is equivalent to a dismissal of the complaint as to the two defendants demurring; and the supreme court, taking such view of it, considered it a sufficiently final judgment. To the decision of the district court the plaintiff duly excepted, and seasonably appealed to this court.

H. A. Copeland, for appellant. Marcus Robbins, for respondents Snyder and Burdick.

SHANNON, C. J., after giving the foregoing statement of the case, delivered the opinion of the court, as follows:

It is to be observed that as against the two defendants Snyder and Burdick the action is solely upon their bond; and we cannot agree with their counsel that the complaint shows the bond was executed within the territory. We cannot presume it was executed and delivered at Vermillion, for the instrument does not so state, nor does the complaint. Whether this is material or not, it is best to be accurate. As to these defendants, the notes are referred to in the complaint as showing a breach of the conditions of the bond, together with the measure of damages, or as admissions of just indebtedness of their principal under the contract.

By their general demurrer they admit, at least, all such matters of fact as are sufficiently pleaded. Having had their option whether to answer or to demur, they are to be taken, in adopting the latter alternative, as admitting that they had no ground for denying or traversing the facts as alleged. They consequently confess that the facts alleged are true, and therefore the only question for the court is whether, assuming such facts to be true, they sustain the case of the party by whom they are alleged.

Thus, among other things, these defendants have admitted that the plaintiff is a company duly incorporated by the legislature of Pennsylvania, and that it was doing business under its corporate name; that, as such corporation, they voluntarily entered into the contract or obligation with it, upon the strength of which the plaintiff parted with its property; that it furnished the sewing machines to Moore under the contract and at the place designated; that his notes were not paid at maturity, and that he is justly indebted in the sum named. In fine, they admit their liability under the bond, provided the plaintiff can show a compliance with a certain statute referred to in the argument. In other words, the whole pith and moment of the contention are concentrated in the objection made by respondents' counsel in his brief, to-wit: “It does not appear that this corporation has complied, or attempted to comply, with the provisions of paragraphs 567, 568, and 569 of the Civil Code of the territory of Dakota, or that this corporation was created for a religious or charitable purpose solely.” Before the code of procedure it was a principle that a de...