Craig v. A. Leschen & Sons Rope Co.

• Decision Date: 03 December 1906
• Parties: CRAIG et al. v. A. LESCHEN & SONS ROPE CO.
• Court: Colorado Supreme Court

87 P. 1143

38 Colo. 115

CRAIG et al. v. A. LESCHEN & SONS ROPE CO.

Supreme Court of Colorado

December 3, 1906

Appeal from District Court, Teller County; William P. Seeds, Judge.

Action by the A. Leschen & Sons Rope Company against W. E. Craig and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

R. G. Withers, for appellants.

Chas Butler, for appellee.

BAILEY J.

This action was brought in 1898. The first trial resulted in a judgment for appellants. This judgment was reversed by the court of appeals in 18 Colo.App. 353, 71 P. 885. The cause was again tried and the trial court directed a verdict in favor of plaintiffs. At the close of the testimony, the defendants asked to amend their answer by adding the following 'That the plaintiff company are estopped from claiming any title to the property levied upon by the defendant Craig for the reason that they held themselves out as being the absolute owners of the said property and by said open and public representation led people, and particularly the defendants herein, to give them the credit which they received, because of such open and public administration of ownership, to wit: John A. Leschen, Henry Leschen, Isaac O Sutphine, and J. B. Bell.' The court denied this application, and its action was assigned as error. Defendants then offered to prove that John Leschen, Henry Leschen, Isaac O. Sutphine, and J. B. Bell held themselves out to the world as being the owners of the property upon which defendants made the levy. This offer was refused, and error is assigned to the court's action in this respect. The court did not err in either particular.

It was determined by the court of appeals that testimony offered for the purpose of showing that the plaintiff corporation was estopped--and such was the object of the proof offered in this case--could not be admitted in the absence of a plea. Defendants, of course, knew of the ruling of the court of appeals before this second trial and if they desired to interpose such a plea, application should have been made to amend the answer previous to the trial and not at the close of the testimony.

At the time this action was commenced the law provided that foreign corporations shall not be 'permitted to do any business in this state' until the fee for filing the articles of incorporation shall have been paid. Session Laws 1897, p 157, c. 51. Plaintiff was a Missouri corporation. It had not paid the fee, and objection was made to the introduction of the articles of incorporation because it had failed to comply with the statute. This matter was not raised by the pleadings, Defendant's answer did not aver that the corporation had failed to comply with the law. There is no proof that the corporation did any business in this state other than the purchase of the mining machinery involved in this action. The Supreme Court of the United States in Cooper Mfg. Co. v. Ferguson, 113 U.S. 734, 5 S.Ct. 741, 28 L.Ed. 1137, in construing a similar statute says: 'Reasonably construed, the Constitution and statute of Colorado prohibit, not the doing of a single act of business in the state, but the carrying on of business by foreign corporations without filing a certificate and the appointment of an agent as required by the statute.' We held in Colorado Iron Works Co. v. Sierra Grande M. Co., 15 Colo. 499, 25 P. 325, 22 Am.St.Rep. 433: 'The sale of one lot of mining machinery is not doing business within the state.' The statute of 1877, being section 499, Mills' Ann. St., provides that: 'Foreign corporations shall before they are authorized or permitted to do any business in this state, make and file a certificate,' etc. The law of 1897 provides that 'no such corporations * * * shall have or exercise any corporate powers or...