Frye & Co. v. Merchants' Transp. Co.
| Citation | 118 Wash. 602,204 P. 184 |
| Decision Date | 16 February 1922 |
| Docket Number | 16896. |
| Court | United States State Supreme Court of Washington |
| Parties | FRYE & CO. v. MERCHANTS' TRANSP. CO. |
Department 2.
Appeal from Superior Court, Pierce County; E. M. Card, Judge.
Action by Frye & Co., a corporation against the Merchants' Transportation Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.
Byers & Byers, of Seattle, for appellant.
Donworth, Todd & Higgins, of Seattle, for respondent.
Respondent alleged, appellant denied on information and belief, but the court found, that respondent is a corporation of the state of Nevada, with its principal place of business in Seattle, King county, Wash., and had paid its annual license fee due the state of Washington, at the time of the pleading.
Appellant moved a nonsuit at the close of plaintiff's case upon the ground of utter failure of proof, which was denied by the court. Appellant excepted to this finding because there was no proof of the facts, and bases error thereon. There is no proof or admission in the record of those necessary and material allegations of fact.
A number of other errors are urged, but this one is sufficient. In all other respects we are disposed to affirm the judgment against appellant, deeming the other errors urged to be untenable. There is nothing serious involved, but questions of fact.
We long ago held, in Denver v. Spokane Falls, 7 Wash. 226, 34 P. 926, that the legal capacity of the plaintiff may be raised under the form of general denial, and that under such denial plaintiff was put to its proof as to every allegation material to its cause of action. See, also, Thompson-Spencer Co. v. O. A. Thompson, 61 Wash. 547, 112 P. 655, Washington Printing Co. v. Osner,
In the last two cases no issue had been raised as to the corporate capacity of plaintiff by the pleadings. In this case, the issue having been raised, and there being a total failure of proof as to the corporate capacity of respondent, it follows that there was a complete failure of proof upon which to base such finding necessary to respondent's recovery.
The judgment is reversed, and a new trial ordered.
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...... it does not show a compliance with the statute. In Frye &. Co. v. Merchants' Transp. Co., 118 Wash. 602, 204 P. 184, the action was by a ......
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