Harvey E. Mack Co. v. Ryan
| Decision Date | 19 November 1927 |
| Docket Number | 6201. |
| Citation | 261 P. 283,80 Mont. 524 |
| Parties | HARVEY E. MACK CO. v. RYAN. |
| Court | Montana Supreme Court |
Appeal from District Court, Powell County; George B. Winston, Judge.
Action by the Harvey E. Mack Company against Thomas Ryan. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with direction.
W. E Keeley, of Deer Lodge, for appellant.
J. B C. Knight, of Anaconda, for respondent.
Appeal by the defendant, Thomas E. Ryan, from a judgment in favor of the plaintiff, Harvey E. Mack Company, a corporation, in an action in claim and delivery, involving the ownership of an automobile.
The complaint herein alleges that the plaintiff is a Minnesota corporation, and the owner of a certain automobile particularly described, of the value of $750; that the automobile is in the possession of the defendant, who wrongfully withholds it, and has refused to deliver it to plaintiff on proper demand made. The usual affidavit and undertaking were filed, and the automobile was taken from the possession of the defendant by the sheriff.
By answer the defendant denied, on information and belief, that plaintiff was a corporation as alleged, admitted his possession of the automobile, and denied generally all other allegations of the complaint.
The cause was tried to the court and jury. At the outset defendant objected to the introduction of any testimony on the ground that the complaint did not state a cause of action, which objection was overruled. The only witness giving material testimony for the plaintiff was one Roger B. Taney, who stated that he was the vice president of the corporation plaintiff. Defendant moved to strike the statement that the plaintiff was a corporation, which motion was denied by the court with the statement that, if the plaintiff was not proven to be a corporation, it would strike the statement. The witness produced a copy of the certificate of incorporation, showing its filing in the office of the secretary of state of Minnesota, with the certificate of the secretary of state as to its authenticity, and the certificate of true copy made by the register of deeds of Hennepin county, the certificate of a justice of the Supreme Court that the party signing as secretary of state was in fact such officer, and that the certificate and attestation is in due form, and the articles are duly certified by the person having the legal custody of the original; certificate of the clerk of the Supreme Court that the justice was such officer; a certificate of the judge of the district court of Hennepin county that the party signing the certificate as register of deeds was such officer and the signature genuine; the certificate of the clerk of the district court that the party signing the last named certificate was the judge of the court; and an affidavit of publication of the articles of incorporation. The instrument was offered in evidence and admitted over the objection of defendant.
The witness then testified that the plaintiff was a dealer in automobiles in Minneapolis, new and secondhand; that the automobile in question was sold to one Leo J. La Bonte on August 1, 1925, on conditional sales contract, which was signed in the presence of the witness, the purchase price being $809.25, of which the purchaser was to pay $325 down and the balance in installments; that La Bonte gave his check for the down payment on signing the contract, and left with the car; that the check was returned, as La Bonte had no funds in the bank on which it was drawn, and a search for the car disclosed it at Deer Lodge, in the possession of defendant. Thereupon plaintiff offered the conditional sales contract in evidence, to which offer defendant objected on the ground that it was not shown that the contract had ever been filed in Minnesota, and that, in the absence of a pleading of the laws of Minnesota, they must be considered as the same as ours. The objection was overruled and the contract admitted. The witness then testified that the car was owned by the plaintiff, and that it never parted with its title thereto.
The defendant admitted the demand upon him and the value of the car. Plaintiff then rested. Defendant then moved to strike the articles of incorporation and the contract, which motion was denied, whereupon defendant moved for judgment of nonsuit. This motion the court also overruled, stating that some of the matters urged were worthy of consideration, but that they could be presented on motion for a directed verdict.
Defendant then showed that La Bonte, going under the name of Leonard Brown, worked for his parents for a period of seventeen days in August, 1925, coming to the ranch in the car in question, and having with him his wife and small child; that he was hard up, and defendant advanced him $32 to get his wife's clothing from a rooming house and $30 for repairs on the car; that La Bonte, or Brown, tried to sell the car to defendant's mother and father and to a neighbor, and, on leaving, La Bonte desired to get $100 from defendant on the car; he referred to it as a loan, but his wife objected, and defendant offered to purchase the car for $100, in addition to the $62 advanced, and La Bonte agreed to sell at that figure; that the two went to the office of an attorney and had a bill of sale drawn, which was delivered to defendant, whereupon he paid La Bonte the sum of $100. Defendant stated that he knew he was getting the car for considerably less than it was worth, but would not have otherwise purchased it.
The car carried a Montana license plate and, before purchasing, defendant ascertained that it was duly registered under the name of Leonard Brown. The application for registration was produced; it showed that the car was registered August 10, 1925, from Billings, and that Leonard Brown made affidavit that he was the owner thereof. The defendant admitted that one Boon, from whom he borrowed the $100 on the day of the purchase, questioned him concerning ownership of the car, and cautioned him against buying it.
At the close of all of the evidence each party moved for a directed verdict. The court overruled each motion, and, without request from either party that the matter be submitted to the jury, proceeded to settle instructions offered by both parties, and submitted the matter to the jury. The jury found for plaintiff, and returned a verdict in the usual form in claim and delivery cases, and, in addition to a return of the car, rendered verdict for $1 damages to plaintiff, and closed their verdict with the direction that the parties divide the costs of suit. On the verdict the court rendered and entered judgment for the return of the car, for the $1 damages, and for costs in favor of plaintiff. Defendant moved for a new trial, which motion was denied.
1. The first contention of defendant is that the court erred in admitting the certified copy of the plaintiff's articles of incorporation, as the instrument was not accompanied by a certified copy of the laws of Minnesota relative to incorporation, and therefore again erred in refusing to strike those articles as an exhibit. Counsel for plaintiff asserts that the articles were properly admitted, inasmuch as the provisions of subdivision 7 of section 10568, Revised Codes of 1921, were strictly followed in securing the certification of the copy presented, and relies upon the decision of Knapp, Burrell & Co. v. Strand, 4 Wash. 686, 30 P. 1063, in support of this contention.
This contention has already been disposed of by this court. In Milwaukee Gold Extraction Co. v. Gordon, 37 Mont. 209, 95 P. 995, the above statute, then existing as section 3206 of the Code of Civil Procedure of 1907, was considered in this connection, and it is there said that, while no error was committed in excluding the instant certified copy of articles of incorporation for the reason that the statute had not been fully complied with, The court there considered the Washington case cited by counsel, and declared "that case was decided upon a particular provision of the statute of Washington, and is not applicable here, where we have no such statute." The provision referred to is found in the Washington statute providing that a foreign corporation may do business in the state by filing and causing to be recorded in the office of the secretary of state a certified copy of its articles of incorporation, certified by the proper custodian according to the laws of the state of its existence, and attested by such officer under his hand and seal of office, "which attestation shall be prima facie proof of the facts therein stated." We then had a like provision as to the procedure by which a foreign corporation might prepare for doing business in this state (section 4413, Rev. Codes 1907), but the quoted clause in the Washington statute, or its equivalent, does not appear therein. Section 4413, above, now appears, with amendments not important here, as section 6651 of the Revised Codes of 1921.
In 1909, after the decision in Milwaukee Gold Extraction Co. v. Gordon, our Legislature enacted what is now section 5914, Revised Codes 1921, providing that:
"* * * A certificate issued by such...
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