Stone v. Victor Electric Co.

• Court: Colorado Supreme Court
• Writing for the Court: CAMPBELL, J.
• Citation: Stone v. Victor Electric Co., 36 Colo. 370, 85 P. 327 (Colo. 1906)
• Decision Date: 02 April 1906
• Parties: STONE v. VICTOR ELECTRIC CO.

85 P. 327

36 Colo. 370

STONE v. VICTOR ELECTRIC CO.

Supreme Court of Colorado

April 2, 1906

Appeal from Arapahoe County Court; Ben B. Lindsey, Judge.

Action by the Victor Electric Company against George L. Stone. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank S. Tesch, for appellant.

Carlow Skelton & Morrow, for appellee.

CAMPBELL J.

This action was begun in the court of a justice of the peace to recover the sum of $77 for an electrical machine, called a 'rotary transformer,' sold by the plaintiff to the defendant. There was a judgment for plaintiff, both in the justice court and also upon defendant's appeal therefrom in the county court, and defendant is here with his appeal.

1. A number of specifications of error are directed to rulings of the trial court upon the evidence. Without indicating the character of these objections, it is sufficient merely to say that our examination leads us to believe that these assignments are not well taken.

2. The defendant properly questioned, below and here, the right of the plaintiff to maintain the action. Sections 4, 10, c. 52, pp. 118, 121, of the Laws of 1901 require, among other things, that a foreign corporation doing business in this state shall make certain filings in the office of the Secretary of State, and pay certain taxes and fees, and receive from that officer a certificate or permit to do business in this state, and until such payments are made and certificate issued it is prohibited from transacting business, or prosecuting or defending any action in the courts of the state. Plaintiff is an Illinois corporation doing business in the city of Chicago. The machine, for the purchase price of which this action was brought, was ordered by defendant, who is a dentist in the city of Denver, by a letter written in Denver and transmitted to Chicago to plaintiff. The machine was manufactured in Chicago, and shipped there by the plaintiff to the defendant, and received by the latter in the city of Denver. Whether the sections of the statute invoked apply to this transaction we do not decide. The defendant's point is not well taken, because the contract of sale was made, and defendant's liability thereunder accrued, before the statute in question was enacted. We do not believe the statute was intended to be retroactive, and its provisions are not applicable to this case. Texas Land & Mortgage Co. v. Worsham, 76 Tex. 556, 13 S.W. 384; Middlebrook v. David Bradley Mfg. Co. (Tex.Civ.App.) 27 S.W. 169.

3. It is said that the trial court committed error in permitting depositions, taken in behalf of the plaintiff in the state of Illinois, to be read at the trial without affidavit or oral testimony that the witnesses who gave them continued absent from the county or were infirm at the time of the trial. This objection might be disregarded, because the abstract does not include the portion of the record showing such ruling. There is, however, no merit in the contention, for that provision of section 343 of the Civil Code requiring such proof is applicable only where the depositions are taken in, and not out of, the state.

4. The principal objection argued goes to the merits of the controversy. Defendant's main defense is that as a part of the contract of sale the plaintiff absolutely warranted the machine to be fit and suitable for the purpose for which it was ordered, and that, since there was a breach of this warranty, he might retain the machine, as he did, and by way of counterclaim recover for the expenses to which he was put in attempting to repair the same so as to make it fit and suitable for his purpose, and also for damages to his business which he suffered as the result of being deprived of a machine which was essential to the conduct of his business. If defendant's construction of the contract be correct we cannot, in the present state of the record, say that...