Lowenmeyer v. Nat'l Lumber Co.

• Decision Date: 25 November 1919
• Docket Number: No. 10070.,10070.
• Citation: 125 N.E. 67,71 Ind.App. 458
• Parties: LOWENMEYER v. NATIONAL LUMBER CO.
• Court: Indiana Appellate Court

71 Ind.App. 458

125 N.E. 67

LOWENMEYER

v.NATIONAL LUMBER CO.

No. 10070.

Appellate Court of Indiana, Division No. 1.

Nov. 25, 1919.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by Benjamin Lowenmeyer against the National Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.Howell & Jones, of South Bend, and Theodore Johnson, of Chicago, Ill., for appellant.

Eli F. Seebirt, Daniel D. Schurtz, Fred C. Klein, and George W. Zinky, all of South Bend, for appellee.

BATMAN, J.

This is an action by appellant against appellee to enforce the specific performance of a contract involving a sale of real estate. It is alleged that the Harmon Coal Company, a corporation organized under the laws of the state of Delaware, contracted with appellee, a corporation organized under the laws of the state of Indiana, for the purchase of certain real estate in South Bend, Ind.; that appellee received part of the purchase price in cash, took stock in said coal company for a portion thereof, and gave time for the payment of the balance due thereon; that said coal company was adjudged a bankrupt, and its rights under said contract were duly sold by a trustee in bankruptcy to one Bliss, who transferred the same to appellant; that appellant tendered to appellee the balance of the purchase money for said real estate, and demanded a deed of conveyance therefor, which was refused. To the complaint appellee filed an answer in abatement in two paragraphs, each of which is based on the alleged fact that said coal company was and is a foreign corporation, and at the time of the purchase of said real estate it had not, nor has it since said time, complied with the law of this state, with reference to the admission of foreign corporations for the purpose of transacting business and exercising corporate powers. Appellant filed a demurrer to each of these paragraphs, which was overruled, and he then filed a reply thereto in general denial. The cause was thereupon submitted to the court for trial on the issues thus formed, and upon a special finding of facts, made upon request, a conclusion of law was stated in favor of appellee, and a judgment was rendered thereon, that the action abate. From this judgment appellant prosecutes this appeal, and alleges that the court erred in overruling his demurrer to each paragraph of the answer in abatement, and in stating its conclusion of law on the special finding of facts.

We will first direct our attention to the alleged error, based on the action of the court in stating its conclusions of law in favor of appellee, on the special finding of facts, as a determination of the questions raised in that connection will be decisive of this appeal. So much of the special finding of facts as is necessary for an understanding of the questions presented and determined with reference to the alleged error under consideration is substantially as follows: That appellee is, and has been ever since October 1, 1912, a corporation duly organized under the laws of the state of Indiana, with powers only to buy and sell lumber and do a lumber business, and with such other powers as are by law incident thereto, and that said corporation, since the above-mentioned date, has been doing business only in the city of South Bend, Ind.; that on said date the Harmon Coal Company was, and for more than one year before said date had been, a corporation duly organized under the laws of the state of Delaware, with powers only to engage in the purchase and sale of coal and fuel, and to hold such real estate as may be necessary to carry on said business; that on said date said foreign corporation, Harmon Coal Company, established a place of business in South Bend, Ind., where, and from which time until the year 1914, it engaged in the business in the said city and state of buying and selling coal at retail; that on said date appellee was the owner of certain real estate in the city of South Bend, Ind., described in appellant's complaint; that on said date appellee and the said coal company entered into a certain contract whereby the former sold said real estate to the latter; that said coal company purchased said real estate for the purpose of using the same as a coal yard, and in conducting its business in said city of South Bend; that beginning with October 14, 1912, and until the year 1914, it did carry on its business of selling coal for profit in said city, from and upon said real estate; that said contract between said coal company and appellee was negotiated and entered into on behalf of said coal company by its agent, Howard R. Van Auken, in the city of South Bend, Ind., and that all things done on behalf of said foreign corporation in the purchase of said real estate were done by it in said city and state, and that said real estate was bought by it through its said agent for the purpose of establishing a permanent place of business in said city of South Bend; that on October 12, 1912, the said coal company, in pursuance of the terms of said contract, paid to appellant the sum of $50, and issued to it its certificates for 100 shares of the preferred stock of said coal company and 100 shares of the common stock thereof; that said shares of stock were received by appellee as a payment of $1,000 on the purchase price of said real estate, and that said coal company executed to appellee its promissory note for $2,950, due on March 1, 1913, which note was delivered to appellee when said coal company approved the abstract of title to said real estate; that a portion of the indebtedness represented by said note was paid, but that the sum of $2,000 thereof remained unpaid; that on August 10, 1914, a petition in bankruptcy was filed in the United States District Court, and subsequently on October 6, 1914, an order was entered thereon adjudging said coal company a bankrupt; that on said date the Central Trust Company of Illinois was duly appointed a trustee in bankruptcy of said...