Dearborn Foundry Co. v. Augustine

• Citation: 31 P. 327,5 Wash. 67
• Parties: DEARBORN FOUNDRY CO. v. AUGUSTINE ET AL.
• Decision Date: 11 October 1892
• Court: United States State Supreme Court of Washington

31 P. 327

5 Wash. 67

DEARBORN FOUNDRY CO. v. AUGUSTINE ET AL.

Supreme Court of Washington

October 11, 1892

Appeal from superior court, Spokane county; JAMES Z. MOORE, Judge.

Action by the Dearborn Foundry Company, a corporation, against H. W Augustine, Henry M. Hoyt, Walker L. Bean, Katie H. Bean David T. Ham, and Emma D. Ham, to foreclose a mechanic's lien. From a judgment and decree for plaintiff, defendants appeal. Affirmed.

Dunbar J., dissenting.

F. T. Post, for respondent.

SCOTT, J.

The plaintiff was a foreign corporation, and sold to the appellants certain material, which was used in the construction of a building at the city of Spokane, in this state. Said material was shipped by the respondent at Chicago, to be delivered to the appellants at Spokane aforesaid. Respondent subsequently filed a notice of a lien on the premises whereon said building was situate, and this action was brought to foreclose the same. Judgment was had for the plaintiff, and the defendants appealed. A trial by jury was demanded by the defendants; but the court, while stating that it was a proper case to submit to a jury, refused to allow them one, on the ground that there was no power vested in the court to call a jury in an equity cause.

We have lately held in the case of State v. Lichtenberg, 30 P. 659, that the court has authority to direct a jury trial of issues of fact in such causes. It is contended by the appellants that because the court refused to exercise its discretion in the premises on the erroneous ground of a want of authority to consider the request, and as it appears that a jury trial would have been granted had the court deemed itself authorized to grant one, the cause should be sent back for a retrial. It does not seem to us that the position is well taken. The verdict of a jury in such a cause is advisory only. A trial was had before the court upon the evidence. The evidence is all brought here, and we retry the case upon the facts as well as the law. While a jury might have found otherwise as to the facts, and while the court, owing to the conflicting character of the evidence and the amount of testimony introduced upon both sides, might not have set aside such a verdict, although the court would have found differently as to the facts originally, yet under all of the circumstances this would not justify a setting aside of the judgment rendered, simply to give the defendants an opportunity to try the cause before a jury, and have the benefit of the chance of obtaining a different finding thereby. If we thought the facts were otherwise than as found by the lower court, it would be our duty to refind as to them according to the true nature of the evidence as it should appear to us.

It is contended by the appellants that the contract in this case is ultra vires; it having been made in this state, and the plaintiff not having complied with the laws of the state relating to foreign corporations doing business herein. A number of cases decided in other states, based upon various statutory provisions essentially differing from our own, are cited upon this proposition by appellants. In some of them a compliance with the statutes was made a condition precedent to the right to do business within the state, and all contracts made by any foreign corporation within such state were declared by the statute to be void if the laws had not been complied with. In some instances no punishment was provided for a failure to comply with the statutes, and, if the contracts were recognized as valid there would have been no way of enforcing the law. Our statutes recognize the right of foreign corporations to do business here; and, while it is stated that they are so authorized by a compliance with the...