Interstate Const. Co. v. Lakeview Canal Co.

Decision Date15 April 1924
Docket Number1113
Citation224 P. 850,31 Wyo. 191
PartiesINTERSTATE CONST. CO. v. LAKEVIEW CANAL CO
CourtWyoming Supreme Court

APPEAL from District Court, Park County; PERCY W. METZ, Judge.

Action by the Interstate Const. Co. against Lakeview Canal Co., and others to foreclose a lien and recover a balance due for work and material furnished in the construction of a canal. There was judgment for defendants and plaintiff appeals.

Affirmed.

Johnson & Johnson and J. H. Van Horn for Appellant.

It is true that appellant did not file its articles of incorporation and acceptance of the Constitution before performing the work under its contract, but did comply with the law in this respect long before the commencement of the action; this did not make the contract void, and it could sue in the courts of the State, Gould Co. v. Telephone Co. (Wyo.) 101 P. 939; 2 Marawetz Corp. 665; 9 Fletch Cyc 5941-5945; Inter. Trust Co. v. Co., 41 Colo. 299, 92 P. 727; W. Elect. Co. v. Prichett, 51 Colo. 415, 118 P. 988; Kansas v. Co., 76 P. 411; Wood Mowing Mach. Co. v. Caldwell, 54 Ind. 270; Elston v Pigott, 94 Ind. 14; Asphalt Co. v. New York (N Y.) 49 N.E. 1043; Wolfing v. Armstrong Cork Co., 157 S.W. 615; Chicago Mills v. Sims, 74 S.W. 128; Nat. Fertilizer Co. v. Fall River B 196 Mass. 458, 82 N.E. 671; Kirwin v. Co., 145 F. 288; Ceasar v. Capell, 83 F. 403; appellant appointed a process agent before commencing suit, and was entitled to sue, Kendrick v. Warren Bros. (Md.) 72 A. 461; 6 Thompson Corp. 7956; appellant was hindered in its work by litigation, in which the Company was involved; Canal Company breached its contract in not making deposits, 2 Williston Contr. 767-768; 13 C. J. 648; the Canal Co. waived its right to statement other than as furnished, Cummings v. Pense, (Ind.) 27 N.E. 631; Boden v. Maher, (Wis.) 81 N.W. 661; Caluwaert v. Schapiro, 152 N.Y.S. 1016; 13 C. J. 669; appellees waived a tender, Strasbourger v. Leerburger, (N. Y.) 134 N.E. 836; Union League v. Sweeney, (Ind.) 111 N.E. 305; Cook v. Hogedorn, (Ind.) 131 N.E. 788; Butterworth v. Co., 132 Mass. 489; West Rockingham Co. v. Sheets, 26 Grat. (Va.) 854; Nickle v. Co., 46 S.W. 435; Berliner v. Co. (Cal.) 53 P. 922; Linton v. Co., (N. Y.) 27 N.E. 406; lien cases cited by appellee arose before Wyoming Act was amended dispensing with strict construction, Braeckel v. Shade, (Mo.) 118 S.W. 1196; State v. Reynolds, (Mo.) 232 S.W. 1035; Lumber Co. v. Wetzel Co., (W. Va.) 72 S.E. 786; an itemized account was impracticable, a lien should lie for work performed in enlarging a canal, Bennett Co. v. Land Co., 93 P. 789; Pac. Coast P. Co. v. Irri. Co., 187 P. 940; Continental & C. T. Bouk et al. Carey Bros. Cont. Co. ctd. 208 F. 976; T. F. Salmon River Co. v. Caldwell, 242 F. 177; the court erred in excluding material evidence as to deposits and accounts furnished to the Canal Company; motion for nonsuit admits the truth of plaintiff's evidence, Whitehead v. Co., 26 Colo.App. 114, 141 P. 138.

Brome & Hyde for Appellee.

The property belongs to Fertile Valley Canal Company, which Company is not a party to this appeal, and it should be dismissed; no lien account was included in the lien statement; Carey Act Canal property is not subject to lien; appellant did not accept the Constitution and Statutes of Wyoming before performance of work; appellant failed to furnish statements as required by the contract; defendant's motion to dismiss was properly sustained; substantial performance of conditions precedent is necessary to authorize recovery, 6 R. C. L. 944; appellant was doing business in the State unlawfully, subsequent compliance did not cure this defect; Gould v. Co., 17 Wyo. 507; plea of ignorance of the law is unavailing, 9 Fletch Sec. 5942; if appellant was transacting business unlawfully a discussion of the lien claim is unnecessary, however, the property was not subject to lien, but no just and true account of the lien demand was filed; the pretended lien is void; Wyman v. Quayle, 9 Wyo. 330; Big Horn Co. v. Davis, 14 Wyo. 468; Davis v. Lumber Co., 14 Wyo. 523; Becker v. Hopper, 22 Wyo. 253.

Johnson & Johnson and J. H. Van Horn in reply.

Fertile Valley Company defaulted below; it did not own the property; the record shows it was owned by Lakeview Company; the contract is in evidence with other facts showing how it was carried out by the parties; upon the question of a foreign corporation's right to suit, after compliance with the law, we cite, Woolfort v. Dixie Cotton Oil Co., 91 S.W. 306; Watkin Med. Co. v. Martin, 200 S.W. 283; Mechanic Mill & Lbr. Co. v. Co., 32 P. 1075; Kraft v. Hoppe, 188 N.W. 162; Carson R. Co. v. Stearns, 31 S.W. 772; Security Savings & Loan Ass'n. v. Elliott, 54 N.E. 753; Swift & Co. v. Little, 28 R. I. 108, 65 A. 615; Hirchfield v. McCullough, (Ore.) 130 P. 1131; upon the question of Waiver of Conditions Precedent we cite, Lundsford v. Wren, 63 S.E. 314; Children v. Smith, (Tex.) 37 S.W. 1080; Pechner v. Co., 65 N.Y. 203; M. E. Church v. Brose, 104 Ill. 215; Bannister et al. v. Patty's Exr's. 35 Wis. 225; Healy v. Follon, (Conn.) 37 A. 497.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This case involves a "cost-plus" contract, and, like many other contracts of that kind has resulted in trouble. The Interstate Construction Company, plaintiff below and appellant here, is a corporation organized under the laws of the State of Colorado, and on April 3, 1920 entered into a contract at Denver, Colorado with the Lakeview Canal Co., respondent herein, whereby the appellant agreed to enlarge and extend the so-called Hammitt canal in Park County, Wyoming, the whole work involving the excavation of approximately 168,000 cubic yards. Appellant agreed to complete the work on the 15th day of June, 1920, which time was subsequently extended by agreement of the parties. Appellant agreed to furnish all labor and material that might be necessary for the prosecution and completion of the work. A dispute arose between the parties and on or about June 20th, 1920, the Lakeview Canal Company terminated the contract and compelled the appellant to abandon it. Approximately $ 40,000 had been paid on the contract, and appellant claims that there is still due thereunder the sum of $ 38,442.58, for work and material furnished. The trial court entered judgment in favor of defendant, from which appellant appeals.

The Lakeview Canal Company pleaded as a defense herein, and it is conceded, that the appellant is a foreign corporation and that it did not accept the constitution of the State of Wyoming and did not file such acceptance in the office of the Secretary of State as required by the constitution and statutes of the state until June 28, 1920, after the termination of said contract. The question thus raised is the only one that we need to consider. Section 5, Art. X of the Constitution provides as follows:

"No corporation organized under the laws of Wyoming Territory or any other jurisdiction than this state shall be permitted to transact business in this state until it shall have accepted the constitution of this state and filed such acceptance in accordance with the laws thereof."

Subsequently, by Chapter 42 of the Laws of 1890-91, now Section 5974, Wyo. Comp. Stat. 1920, the legislature made provision to carry the foregoing constitutional provision into effect. These provisions were construed and considered at length in the case of Gould Land and Cattle Company vs. The Rocky Mountain Bell Telephone Co., 17 Wyo. 507, 101 P. 939. In that case, the Gould Land and Cattle Company, a foreign corporation, which had not accepted our constitution, conducted a live stock business in this state and sued the telephone company for breach of contract in failing to correctly transmit a message over its telephone line from one of its offices in this state to another point in the state with directions to forward the same to an agent of the plaintiff in Idaho. The court held that the constitutional and statutory provisions above mentioned are mandatory and make unlawful, voidable and unenforceable all contracts entered into in this state in violation thereof.

The holding in that case is inconsistent with the contention that a compliance with our law subsequent to the making of an unlawful contract, but before suit is started, avoids the necessity of declaring such a contract void. If a contract or any business that gives rise to a claim is unlawful, it cannot well be made lawful by anything that is done subsequently. Where the right of action only is suspended during the time of non-compliance with a statute, the rule is different. But the courts are agreed, we think, that where the claim sued on arises out of a transaction unlawful by reason of non-compliance with the constitution or laws, a subsequent compliance has no effect. Fletcher Cyc. Corp., section 5972. The case at bar cannot, accordingly, be taken out of the rule laid down in the Gould case because of the fact that appellant complied with the law on June 28, 1920, before the bringing of this suit. Nor does the fact that the contract in the case at bar was entered into at Denver, Colorado, alter the situation. The contract has reference solely to business to be done in this state. The law forbids the doing of any business in this state, by a foreign corporation, until acceptance of the constitution. It can, clearly, make no possible difference whether the unlawful business is done pursuant to a written or oral contract, or pursuant to a contract entered into in one place rather than another. If the business is done within the state, without accepting the constitution, it is done unlawfully. The criterion in any case is: Does the claim arise out of, or in connection with, an unlawful doing...

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