Lehigh Valley Coal Co. v. Gilmore

• Citation: 101 N.W. 796,93 Minn. 432
• Parties: LEHIGH VALLEY COAL CO. v. GILMORE et al.
• Decision Date: 16 December 1904
• Court: Supreme Court of Minnesota (US)

93 Minn. 432

101 N.W. 796

LEHIGH VALLEY COAL CO.

v.GILMORE et al.

Supreme Court of Minnesota.

Dec. 16, 1904.

Appeal from District Court, Ramsey County; Grier M. Orr, Judge.

Action by the Lehigh Valley Coal Company against J. K. Gilmore and Sarah K. Gilmore, partners as J. K. Gilmore & Co., using the trade-name ‘Minneapolis Ironworks.’ Judgment for plaintiff, and defendants appeal. Affirmed.

Syllabus by the Court

1. A foreign corporation doing business in this state will be presumed to have complied with the statutes prescribing conditions upon which such corporations may do business within our borders, and the burden is upon the defendant, where the failure of the corporation to comply with the statute is relied upon as a defense, such failure not appearing on the face of the complaint, to affirmatively plead the same in his answer.

2. Other assignments of error held not well taken. William G. White, for appellants.

C. D. & Thos. D. O'Brien, for respondent.

BROWN, J.

Action to recover the value of certain coal alleged to have been sold and delivered by plaintiff to defendants, in which, after trial before the court below without a jury, plaintiff had judgment, from which, after motion for a new trial, defendants appealed.

The complaint alleges that plaintiff, a foreign corporation duly created and existing under the laws of the state of Pennsylvania, and lawfully doing business in the state of Minnesota, at the times stated therein sold and delivered to defendants, at their special instance and request, goods wares, and merchandise, consisting of coal of the agreed price and value of $121.89, for which amount, with interest, judgment was demanded. The answer admits the sale and delivery of the coal, but alleges in defense that it was sold by sample; that prior to the time of the contract plaintiff exhibited to defendants a sample of coal, and that plaintiff agreed to deliver to defendants coal of the same kind and quality as the sample; and that the coal in fact delivered was not of the quality represented by the sample, but was inferior thereto, and defendants refused to accept it. Defendants contend (1) that the evidence wholly fails to show a contract between the parties for the sale and delivery of the coal in question; (2) that, if a contract is shown, it is a different one from that alleged in the complaint; that the complaint alleges an express contract, and at most the evidence shows only an implied contract; (3) that the contract was void, being for the sale and delivery of property of a greater value than $50, under the statute of frauds; and (4) that no evidence was offered to show that plaintiff had in any manner complied with chapter 69, p. 68, or chapter 70, p. 71, ...