Beecher v. Peru Trust Company
| Decision Date | 10 January 1912 |
| Docket Number | 7,458 |
| Citation | 97 N.E. 23,49 Ind.App. 184 |
| Parties | BEECHER v. PERU TRUST COMPANY ET AL |
| Court | Indiana Appellate Court |
From Miami Circuit Court; Joseph N. Tillett, Judge.
Suit by William C. Beecher against the Peru Trust Company and others. From a judgment for defendants, plaintiff appeals.
Reversed.
J. T Cox and Claude Y. Andrews, for appellant.
This suit was brought by appellant against appellees Charles E Duff, Orrin L. Parnell and the Pioneer Stock Powder Company, to restrain them from transferring by sale and indorsement a certain promissory note, payable at a bank in this State, to "C. E. Duff, trading as Pioneer Stock Powder Company"; also against the Peru Trust Company, in whose possession the note had been placed by Parnell, to restrain it from re-delivering said note to Parnell, Duff or the Pioneer Stock Powder Company.
Trial by the court, with a finding in favor of appellees, from which this appeal is taken.
The errors assigned are as follows: (1) Overruling the demurrer to the second paragraph of the answer of appellees Duff, Parnell and the Pioneer Stock Powder Company to appellant's complaint; (2) sustaining a demurrer to the second paragraph of appellant's reply to said answer; (3) overruling appellant's motion for a new trial; (4) rendering judgment in favor of all the appellees and against appellant.
The fourth assignment of error presents no question. The complaint is in two paragraphs, the substance of which is as follows: That appellee Duff was engaged in business under the name of "Pioneer Stock Powder Company;" that appellee Parnell was the agent of said Duff, and on February 4, 1907, procured from appellant a contract whereby he became the local agent of said company for the sale of certain stock food; that, after executing said agency contract, appellant was informed by said Parnell that he should execute to said Duff a note for $ 300, as a mere form, which note he (Parnell) would hold until the expiration of the one-year contract, and then return it to appellant for cancellation; that said representations were made for the purpose of defrauding appellant, and procuring from him said note for $ 300; that he was thereby induced to sign said note, which was given without any consideration; that said note was procured for the fraudulent purpose of negotiating it to some innocent purchaser; that appellees were offering to and would sell said note unless enjoined from so doing.
Appellees, by way of answer, aver that appellee Duff is the proprietor of said company, which is a partnership organized under the laws of Illinois; that it is engaged in manufacturing and selling certain stock powder and preparations to be fed to domestic animals; that the sale of said goods is carried on through agents and wholesale and retail dealers; that appellant was its agent for two townships in Miami county, Indiana, and the note mentioned in the complaint was given for 4,000 pounds of stock powder and eighty gallons of dip at the price named in the agency contract, and was of the value of $ 300; that the goods were to be shipped from Bloomington, Illinois, at such times and in such quantities as appellant should designate; that said note was given for a valuable consideration, fully understood and known to appellant at the time, is the property of appellees, and they are entitled to its possession.
The sufficiency of this answer is assailed because it fails to aver that appellees, in the sale of their stock food, complied with the act of 1907 (Acts 1907 p. 354, §§ 7939-7949 Burns 1908), requiring tests, inspection and registration of such foods before they are offered for sale in this State.
Section 7944 Burns 1908 provides in part as follows: "Any person, company, corporation or agent that shall offer for sale, sell or expose for sale any package or sample or any quantity of any concentrated commercial feeding stuff which has not been registered with the State chemist as required by § 1 of this act, or which does not have affixed to it a tag and stamp required by § 2 of this act, * * * shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in the sum of $ 50," etc.
We have not been favored with a brief from the appellees.
The prevailing weight of authority establishes the proposition that where a statute forbids carrying on a business without first procuring a license, paying a tax, and complying with prescribed tests, inspection, registration or the like, contracts made by persons in carrying on such business are void, though the statute contains no express provision to that effect.
If the statute prescribes what shall be done before the right to do a certain thing, or carry on a certain business, is granted, and prohibits such business under penalty, the fact that the violation of the act is made a misdemeanor implies a prohibition, and gives to it the same effect it would have if the statute expressly declared void contracts made in carrying on such business. Mullikin v. Davis (1876), 53 Ind. 206; Skelton v. Bliss (1855), 7 Ind. 77; Madison Ins. Co. v. Forsythe (1851), 2 Ind. *483; Siter v. Sheets (1855), 7 Ind. 132; Winchester, etc., Light Co. v. Veal (1896), 145 Ind. 506, 511, 41 N.E. 334; 21 Am. and Eng. Ency. Law (2d ed.) 823; Vanmeter v. Spurrier (1893), 94 Ky. 22, 29, 21 S.W. 337; Woods & Co. v. Armstrong (1875), 54 Ala. 150, 25 Am. Rep. 671; Allen v. Pearce (1890), 84 Ga. 606, 10 S.E. 1015; Johnston Bros. & Co. v. McConnell (1879), 65 Ga. 129; Conley v. Sims & Blalock (1883), 71 Ga. 161; Kleckley v. Leyden (1879), 63 Ga. 215; Baker v. Burton (1887), 31 F. 401; Pacific Guano Co. v. Mullen (1880), 66 Ala. 582, 590; McConnell v. Kitchens (1883), 20 S.C. 430, 47 Am. Rep. 845.
The further question remains to be considered, whether appellees will be presumed to have complied with the law, or must aver compliance to make the answer sufficient as showing a good consideration for the note in question.
The complaint alleges that the note was given without any consideration, and also avers facts tending to show that it was procured by fraud, and that appellees had no right to sell or transfer it.
Some courts have held that when an act is required by the law to be done, and a failure so to do is made a misdemeanor, the presumption will be indulged that the law has been complied with. On the other hand, the better reason and the weight of authority is to the effect that when the law fixes certain requirements as conditions precedent to the right to carry on a certain business or profession, or perform certain acts, and affixes a penalty for noncompliance, the person seeking a recovery, or setting up a defense depending on such business or acts, must aver facts, bringing his complaint or defense within the requirements of the law, and not depend upon inference to supply such material facts.
This is in harmony with the general rules of pleading in our State. Ordinarily it is true that the presumption is in favor of compliance with the law. But where the business, profession or acts have been made the subject of legislation, and penalties have been fixed for failure to comply with the statute, the one who assets a right based on such business profession or acts, is by such law informed that his right depends on compliance with the statute, and that he cannot rely upon inference. Jackson School Tp. v. Farlow (1881), 75 Ind. 118; Orr v. Meek (1887), 111 Ind. 40, 11 N.E. 787; Cooper v. Griffin (1895), 13 Ind.App. 212, 219, 40...
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