McConnon & Company v. Laursen
| Decision Date | 15 February 1912 |
| Citation | 135 N.W. 213,22 N.D. 604 |
| Court | North Dakota Supreme Court |
Rehearing March 14, 1912.
Action on guaranty. From a judgment of the District Court of Barnes county; Burke, J., in favor of plaintiff, defendants Nelson and Christensen appeal.
Affirmed.
Judgment affirmed, with the costs of appeal to respondent.
Page & Englert, for appellants.
Lee Combs, for plaintiff and respondent; Tawney, Smith, & Tawney of counsel.
NUCHOLS District Judge. Mr. Justice BURKE being disqualified, S. L. NUCHOLS, Judge of the Twelfth Judicial District, sat in his stead by request.
The complaint alleges that plaintiff "is and was a corporation duly organized and existing according to law," and sets out in full the contract between plaintiff and defendant Laursen, for the sale to said defendant f. o. b. Winona, Minnesota, of medicines and other articles manufactured by plaintiff, in which contract plaintiff is designated as "a corporation of Winona, Minnesota," party of the first part. On the back of the contract is the following writing:
The complaint further alleges the sale and delivery by plaintiff to defendant Laursen, of goods and wares according to said contract, and the failure of the said defendant to pay therefor, and the giving of notice to the defendants Christensen and Nelson, of the default of Laursen, and a demand upon the defendants Christensen and Nelson for the payment of the amount due. Defendant Laursen made no appearance in the action. Defendants Nelson and Christensen demurred to the complaint, on the ground that plaintiff has no capacity to sue, and that it fails to allege whether it is a domestic or foreign corporation, and that the complaint fails to state facts sufficient to constitute a cause of action, for failure to comply with § 7361 of the Revised Codes of 1905, which demurrer was overruled. The last-mentioned defendants answered the complaint, denying generally all the allegations of the complaint, and further denying the incorporation of the plaintiff, and alleging that there was no consideration for the guaranty, and no notice of acceptance thereof by plaintiff had been given, and no notice of the default of the defendant Laursen has been given to the defendants, and other allegations which we need not consider in this opinion, which answer was not verified.
At the close of the testimony, on motion of the plaintiff, the court directed the jury to return a verdict in favor of the plaintiff for the amount demanded in the complaint, to wit, $ 1,053.60. After a motion for a new trial had been denied, defendants Christensen and Nelson appealed from the judgment of the district court, and assign numerous errors.
We will consider the errors assigned in the order in which they are presented in appellants' brief. The first assignment of error is that the court erred in overruling the demurrer to the complaint, on the ground that the complaint did not conform to the requirements of § 7361 of the Revised Codes of 1905. This section reads as follows:
This statute is mandatory to the extent of requiring that the complaint of a plaintiff, suing by a name which indicates that it is not a natural person, must allege that it is a corporation, or state facts showing that it is an artificial being with a capacity to sue. By § 4200 of the Revised Codes of 1905, every corporation is granted the power to sue and be sued by its corporate name; and by § 7364 of the Revised Codes of 1905, a foreign corporation is given generally the same authority as domestic corporations to maintain actions in the courts of this state. The positive allegation in the complaint, that "plaintiff is a corporation, " sufficiently alleges plaintiff's capacity to sue, and when the complaint also sets out in full the contract for a breach of which the suit is brought, in which plaintiff, party of the first part, is designated as "a corporation of Winona, Minnesota," we are agreed that the complaint sufficiently conforms to the statutory requirements, and by reasonable inference alleges that the plaintiff is a foreign corporation, and that it was not error for the trial court to overrule the demurrer. If the defendants desire a more specific allegation as to whether plaintiff was a foreign or domestic corporation, their remedy was by motion to make such allegation more specific, and not by demurrer. See Weber v. Lewis, 19 N.D. 473, 34 L.R.A (N.S.) 364, 126 N.W. 105.
Defendant's assignments of error Nos. 2, 3, and 4 relate to the same subject, each being directed to the action of the court in overruling objections to the admission of evidence tending to prove the incorporation of plaintiff. The evidence objected to was undoubtedly incompetent to prove corporate existence, if the answer had been verified. By the express provisions of § 7362 of the Revised Codes of 1905, in an action by a corporation, the plaintiff need not prove upon the trial the existence of the corporation, unless the answer, an allegation of which denies the existence of the corporation, is verified. In the case at bar the answer is not verified, and no proof of the incorporation of the plaintiff was necessary; therefore the admission of incompetent evidence tending to prove the corporate existence of plaintiff was not prejudicial to defendants, and is not ground for reversal of the judgment of the trial court.
The fifth assignment of error is that the court erred in permitting the president of plaintiff corporation to state the total amount of the goods shipped to the defendant Laursen under the contract. Witness had testified to the separate amounts of each shipment and had identified the invoices of each separate shipment, and the answer as given by the witness was merely the total of the separate amounts which anyone could ascertain by adding together the separate amounts. On cross-examination of this witness, counsel for defendants interrogated him as to the amount of each separate shipment. We find no error in the ruling of the court in overruling the objections to the answers of witness.
Assignments of error 6 and 7 relate to the rulings of the court in sustaining objections to questions by counsel for the defendants in the cross-examination of the president of the plaintiff corporation. The questions objected to did not relate to any matter as to which the witness had testified on direct examination, and were attempts to prove affirmative defenses by cross-examination of plaintiff's witness, and were properly objected to; and we think it was not error for the court to sustain objections to the questions.
Assignment of error number 8 is that the court erred in admitting in evidence the instrument of guaranty. The execution of the instrument was proved by the testimony of the defendants who signed it, and it was properly admitted in evidence.
The ninth assignment of error is that the court erred in sustaining the objection to the offer by the defendants of evidence tending to show that the consideration of $ 1 stipulated in the instrument of guaranty, had never been paid. The court did not err in rejecting such evidence, as it was wholly immaterial as to whether the stipulated consideration of $ 1 had been paid or not. Emerson Mfg. Co. v. Tvedt, 19 N.D. 8, 120 N.W. 1094; Lawrence v. McCalmont, 43 U.S. 426, 2...
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