McCall Co. v. Jennings
Citation | 26 Utah 459,73 P. 639 |
Decision Date | 12 September 1903 |
Docket Number | 1456 |
Parties | THE McCALL COMPANY, a Corporation, Appellant, v. C. P. JENNINGS, J. H. F. LAST, and J. H. THOMAS, Co-partners, Doing Business under the Firm Name of JENNINGS, LAST & THOMAS, Respondents and Cross-Appellants |
Court | Utah Supreme Court |
Appeal from the Second District Court, Weber County.--Hon. C. H Hart, Judge.
Action on contract. From a judgment in favor of the plaintiff, both parties appealed.
REVERSED.
Valentine Gideon, Esq., for appellant.
If it be admitted that the letters written by the defendants constituted a breach on their part, the plaintiff had an election of three remedies: Dustan v. McAndrew, 44 N.Y. 78; Bridgeport v. Crocker, 60 N.Y. 627; Hunter v Wetsell, 84 N.Y. 539; Bagley v. Finley, 82 Ill 524; 72 N.Y. 599; Quick v. Wheeler, 78 N.Y. 300; Heyden v. Demets, 53 N.Y. 424. See also McCormick Harvesting & Machine Co. v. Markert, 78 N.W. 33, and Schwarzer v. Karsch Brewing Co., 74 N.Y. 383.
The general rule is that isolated transactions, commercial or otherwise, taking place between foreign corporations and a citizen of this State, do not constitute doing or carrying on business by the foreign corporation within this State, but that the prohibition contained in the Constitution and in the statutes are against the acts of foreign corporations engaging in or carrying on their ordinary business herein. In Dearborn Foundry Company v. Augustine et al., 31 P. 327, a case decided by the Supreme Court of Washington and under a statute very similar to our own, it was held that a contract made with a foreign corporation which had not complied with the statutes was not void in the absence of a statute so declaring. To the same effect is Rockford Insurance Co. v. Rogers et al., 47 P. 848; Fairbanks, Morse & Co. v. Macleod et al., 45 P. 282.
Nowhere in our statutes is the right to maintain an action at law in the courts of this State denied to a corporation not having complied with the requirements of our statutes. Power River Cattle Co. v. Custer Co., 22 P. 383; Kindel v. Beck & Pauli Lithographing Co., 35 P. 538; Singer Manufacturing Co. v. Hardee et al., 16 P. 605; Savage v. Atlanta Home Insurance Co., 55 App.Div. (N.Y.) 20; American Broom & Brush Co. v. Addickes, 19 Misc. (N.Y.) 36; 113 U.S. 727-733; 64 App.Div. (N.Y.) 138; 5 App.Div. (N.Y.) 559.
Messrs. Hulaniski & Peery for respondents and cross-appellants.
STATEMENT OF FACTS.
The complaint in this case in substance alleges that on or about the 2d day of May, 1899, at Ogden City, Utah defendants entered into a certain contract with plaintiff. The contract in so far as material here, reads as follows: The complaint further alleges that in accordance with the contract, and under the terms thereof, plaintiff delivered to said defendants the goods as therein provided in the sum of $ 624.51; that interest has accumulated on the account since it became due in the sum of $ 18.70. The answer denies the material allegations of the complaint relied upon for a recovery, and alleges a breach of the contract on the part of plaintiff. The record shows that soon after the execution of the contract plaintiff commenced and continued to make shipments to defendants of the patterns, publications, and pattern sheets mentioned in the contract, and defendants received and paid for them in accordance with the terms of the contract until April 2, 1900, on which date defendants wrote plaintiff as follows: Defendants about this time returned to plaintiff the goods they had on hand, which they had received and paid for under the contract, amounting to $ 210. In answer to the foregoing letter, plaintiff wrote defendants as follows: After the foregoing letters were written, there was some further correspondence between the parties, in which the defendants repeated their former notices for the plaintiff not to ship any more goods. Notwithstanding these repeated notices forbidding plaintiff to ship any more goods, and the return of the goods defendants had received and paid for, plaintiff continued for more than a year thereafter to make monthly shipments, aggregating in value $ 557.40 (the contract or purchase price). Defendants in the meantime refused to accept the goods shipped, or take them from the express office or freight depot to which they were consigned. The issues were tried by a jury, who returned a verdict in favor of plaintiff for $ 250. Both parties ap...
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