Norton v. Dartmouth Skis, Inc.

Decision Date14 August 1961
Docket NumberNo. 19457,19457
Citation147 Colo. 436,364 P.2d 866
PartiesCalvin NORTON, Plaintiff in Error, v. DARTMOUTH SKIS, INCORPORATED, Defendant in Error.
CourtColorado Supreme Court

John T. Dugan, Denver, for plaintiff in error.

Holme, Roberts, More & Owen, Denver, for defendant in error.

DAY, Justice.

The parties are here in the same order as in the trial court, and we will refer to them as they there appeared.

Plaintiff brought suit to recover a sum of money alleged to be due him as commissions on sales made in mid-year 1952. The complaint was filed in March, 1959, admittedly more than six years after the cause of action accrued. By answer the defendant alleged as an affirmative defense that the action was barred by the six-year statute of limitations. By reply plaintiff alleged that defendant was a foreign corporation not licensed to do business in this state, was absent therefrom during the ensuing seven years, and that the statute has been tolled. With the deposition of plaintiff showing July, 1952, as the date his alleged services were completed and establishing the period when the cause of action accrued, defendant filed a motion for summary judgment supported by an affidavit of the president of the defendant company as to the method of doing business in Colorado. The counteraffidavit filed by plaintiff was limited to his claim for commissions and left uncontroverted the facts showing Dartmouth's method of doing business in the state. With the pleadings, deposition and affidavit before it, the court granted the motion for summary judgment and dismissed the action on the ground, among others, that it was barred by the statute of limitations. Plaintiff contends that the question of tolling of the statute of limitations presents a genuine issue of fact and that a ruling thereon by summary judgment is error.

With this contention we cannot agree. By the affidavit filed in support of the motion for summary judgment as provided in Rule 56, Colorado R.C.P., the court had such facts before it as to enable it to determine whether the defendant was present in the state for the purposes of service. The affidavit complied with Rule 56(e), R.C.P.Colo., which provides in part that '* * * shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * *'

In the uncontroverted affidavit defendant's presence in Colorado was shown by the following facts: That Dartmouth Skis has been selling skiing equipment in Colorado through local salesmen continuously since 1937; that sales are made through a salesman who carries samples and a catalog of Dartmouth Skis' line of merchandise; that customer orders may be given to the salesman for transmission to the company; that the salesman expedites the delivery of the goods and may choose the means of transportation; that he assists in the collection of delinquent accounts; that he solicits new accounts and checks on customer credit ratings; and that he may pick up over-ordered merchandise from one customer and sell it to another. The affidavit further established that since June 30, 1952, Dartmouth Skis' gross sales in Colorado have been in excess of $38,000.

In a case involving very similar facts, this court affirmed a holding that a corporation was present in Colorado and subject to service in this state. Hibbard, Spencer, Bartlett & Co. v. District Court In and For El Paso County, 1958, 138 Colo. 270, 332 P.2d 208. That decision quoted with approval from International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 317, 66 S.Ct. 154, 159, 90 L.Ed. 95, 102, to the effect that:

"Presence' in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given.'

The distinction between being qualified to do business in a state and being present within it was recognized by Judge Cardozo in International Text-Book Co. v. Tone, 1917, 220 N.Y. 313, 115 N.E. 914, 915, as follows:

'Business may be sufficient to subject the foreign corporation that does it to the service of process, and yet insufficient to require it to take out a license. * * *'

This distinction was approved by this court...

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23 cases
  • Dominguez v. Babcock
    • United States
    • Colorado Supreme Court
    • 3 November 1986
    ...counter-affidavits and allege specific facts, which if true, would raise a genuine issue of material fact. Norton v. Dartmouth Skis Corp., 147 Colo. 436, 364 P.2d 866 (1961). Although the question of malice is ordinarily one for the jury, see Abrahamsen, 177 Colo. 422, 494 P.2d 1287, a judg......
  • Coffman v. Williamson
    • United States
    • Colorado Supreme Court
    • 26 May 2015
    ...avoid a summary disposition of his case” “by merely asserting a fact, without any evidence to support it.” Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866, 868 (Colo.1961) (internal quotation marks omitted); see also Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir.2004) (......
  • Fritz v. Regents of University of Colorado
    • United States
    • Colorado Supreme Court
    • 10 October 1978
    ...A litigant cannot avoid summary judgment by merely asserting a legal conclusion without evidence to support it. Norton v. Dartmouth Skis, 147 Colo. 436, 364 P.2d 866 (1961); See also Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218 (1970). Assuming for purposes of argument that appellant's af......
  • Mishek v. Stanton
    • United States
    • Colorado Supreme Court
    • 8 September 1980
    ...Colo. 335, 586 P.2d 23 (1978); Bunger v. Uncompahgre Valley Association, 192 Colo. 159, 557 P.2d 389 (1976); Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961). IV. The plaintiff also contends that the application to her of the six-year statute of limitations contained in th......
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5 books & journal articles
    • United States
    • Colorado Bar Association Colorado Rules of Civil and Appellate Procedure (CBA)
    • Invalid date
    ...facts are admitted or when a party is unable to support by any competent evidence a contention of fact. Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961). This rule provides a method whereby it is possible to determine whether a genuine cause of action or defense thereto ex......
  • Foreign Savings and Loan Associations Not Doing Business in Colorado
    • United States
    • Colorado Bar Association Colorado Lawyer No. 16-1, January 1987
    • Invalid date
    ...1283 (1958). See, CRS § 13-1-124; Safari Outfitters, Inc. v. Superior Court, 448 P.2d 783, 784 (Colo. 1969); Norton v. Dartmouth Skis, 364 P.2d 866, 867 (Colo. 1961); Begole Aircraft Supplies, Inc. v. Pacific Airmotive Corp., 212 P.2d 860, 861 (Colo. 1949). 4. 204 U.S. 103, 27 S.Ct. 198, 20......
  • A Litigator's Guide to Summary Judgments
    • United States
    • Colorado Bar Association Colorado Lawyer No. 14-2, February 1985
    • Invalid date
    ..._____________________ Footnotes: 1. Terrell v. Walter E. Heller, Co., 165 Colo. 463, 439 P.2d 989 (1968); Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961). 2. Terrell, note 1, supra. 3. See, Blaine v. Yockey, 117 Colo. 29, 184 P.2d 1015 (1947). 4. See, C.R.C.P. Rule 56(b).......
    • United States
    • Colorado Bar Association Colorado Civil Pretrial Handbook (CBA) Chapter 9
    • Invalid date
    ...Rules of Civil Procedure discourages the early filing of a summary judgment motion. --------Notes:[1] Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961).[2] Valenzuela v. Mercy Hosp., 34 Colo. App. 5, 521 P.2d 1287 (1974).[3] Aspen Wilderness Workshop, Inc. v. Colo. Water Co......
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