Goode v. Colo. In v. Loan Co.

• Decision Date: 01 September 1911
• Citation: 117 P. 856,16 N.M. 461
• Parties: GOODE et al.v.COLORADO INV. LOAN CO.
• Court: New Mexico Supreme Court

16 N.M. 461

117 P. 856

GOODE et al.

v.COLORADO IN

v. LOAN CO.

Supreme Court of the Territory of New Mexico.

Sept. 1, 1911.

Syllabus by the Court.

The plaintiff, a Colorado corporation, made the defendants a loan and took a mortgage on real estate situated in this territory; the mortgage being executed within this territory. The defendants answered that the plaintiff had not complied with the law of this territory governing foreign corporations, and had no right to transact business in this territory.

Held, the doing of a single act of business by a foreign corporation does not bring it within section 102, c. 79, Laws 1905, providing that:

“Every foreign corporation except banking, insurance and railroad corporations, before transacting any business in this territory shall file in the office of the Secretary of the Territory a copy of its charter.”

Following Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137.

By their contract the plaintiff and defendants agreed that the law of the contract should be the statutes of the state of Colorado. The defendants answered that the contract called for the payment of more than 12 per cent. interest per annum, contrary to section 2552, C. L. 1897.

Held, the allegation did not constitute a defense; the contract being governed by the laws of the state of Colorado.

Defendants by their answer allege that they were compelled to employ an attorney to defend the action, and a reasonable fee for such attorney is $250.

Held, this paragraph was properly stricken, because in the absence of allegation of any agreement, counsel fees cannot be awarded.

Following Dame v. Cochiti R. & I. Co., 13 N. M. 10, 79 Pac. 296.

By their fourth assignment of error, defendants claim that the court erred in giving judgment for plaintiff.

Held, it not appearing from the record that the judgment is fatally defective on account of lack of jurisdiction, we will not consider this assignment of error.

Following Neher v. Armijo, 11 N. M. 67, 66 Pac. 517.

Appeal from District Court, Union County; before Chief Justice Pope.

Action by the Colorado Investment Loan Company against James Goode and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Where a mortgage to a Colorado corporation, executed in New Mexico, provided that the law of the contract should be the statutes of the state of Colorado, it is no defense to an action to foreclose that the contract called for payment of more than 12 per cent. interest per annum contrary to Comp.Laws 1897, § 2552.

William J. Eaton, for appellants. O. P. Easterwood, for appellee.

MECHEM, J.

This is an action brought by the appellee, hereinafter styled the plaintiff, against the appellants, hereinafter styled the defendants, to foreclose a mortgage on real estate. Judgment for the plaintiff, and defendants appeal.

The appellants assign four errors for our consideration. Of these the first and second are not before us, having been waived.

[1] 1. The third assignment of error questions the action of the court below in striking out the eighth, ninth, tenth, and twelfth paragraphs of defendants' answer. By the eighth paragraph of the answer, it is alleged that the plaintiff had no legal right to sue, for the reason that on the face of the complaint it appeared that plaintiff is a foreign corporation and that it did not appear from said complaint that plaintiff, previous to the execution of the contract sued on, had complied with the laws and statutes of New Mexico governing foreign corporations. Our statute on this subject (section 102, c. 79, Laws of 1905) provides that: “Every foreign corporation except banking, insurance and railroad corporations, before transacting any business in this territory shall file in the office of the Secretary of the Territory a copy of its charter,” etc. The phrase “transacting business” has been held to be equivalent to the words “doing business,” found in the statutes of many of the states. General Conference of Free Baptists v. Berkey, 156 Cal. 466, 105 Pac. 411.

The case of Cooper Manufacturing Company v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137, disposes of this point in favor of the plaintiff, holding, in effect, that the doing of a single act of business, or performing one transaction, would not be within a statute such as ours. It is on this case we hold that, as far as the record before us shows, the plaintiff had transacted but this one act of business,...