The National Bank of Commerce v. Pick

• Decision Date: 13 February 1904
• Citation: 99 N.W. 63,13 N.D. 74
• Court: North Dakota Supreme Court

99 N.W. 63

13 N.D. 74

THE NATIONAL BANK OF COMMERCE v. R. G. PICK

Supreme Court of North Dakota

February 13, 1904

Appeal from District Court, McHenry county; Palda, J.

Action by the National Bank of Commerce against R. G. Pick. Judgment for defendant and plaintiff appeals.

Reversed.

Reversed and remanded.

W. H Thomas and Morrill & Engerud, for appellant.

The mere selling of a machine is not doing business in the sense of section 3265, Rev. Codes 1899. Cooper Mfg. Co. v Ferguson, 113, U.S. 727, 28 L.Ed. 1137; Gilchrist v Helen, etc., Ry., 47 F. 593; Florsheim Bros. Dry Goods Co. v. Lester, 29 S.W. 34; Colorado Iron Works v. Sierre Grande Mining Co., 25 P. 325; Gates Iron Works v. Cohen, 43 P. 667.

Such interpretation would render it repugnant to the Federal constitution. Cooper Mfg. Co. v. Ferguson, supra; Paul v. Virginia, 75 U.S. 168, 19 L.Ed. 357; Walton v. State of Missouri, 91 U.S. 275, 23 S.Ct. 347; Pembina Consolidated Mining Co. v. Penn. 125 U.S. 181, 31 S.Ct. 650.

The answer shows but a single transaction and does not allege that the Northwestern Wind Stacker Co. was doing business in the state. The defense is an affirmative one and must be pleaded. O'Reilly, etc., v. Greene, 40 N.Y.S. 360; New England Mortgage Security Co. v. Vader, 28 F. 265; Sprague v. Cutler & Savidge Lumber Co., 6 N.E. 335; G. O. Bee & Sons v. Blalock, 18 S.E. 264; Nichols v. People's Loan Ass'n, 25 S.E. 8.

If the plaintiff was a bona fide holder of the note in controversy, for value, before maturity, without notice, this was a complete bar to the proposed defense. Press Co. v. City Bank, 58 F. 321, 17 U.S. App. 213; Williams v. Cheney, 69 Mass. 215; Hubbard v. Chapin, 2 Allen, 328; Wortendyke v. Meehan, 2 N.W. 339; New v. Walker, 9 N.E. 386.

Christianson & Webber, for respondents.

Noncompliance with the statute is sufficiently pleaded. Violation of statute may be pleaded in general terms. Meyers Mfg. Co. v. Wetzel et al., 35 S.W. 896. The sufficiency of the allegation was not questioned below and cannot be here. Work et al. v. Kinney, Sheriff, et al., 63 P. 596.

The notes were in violation of sections 3261, 3263, 3265, Rev. Codes 1899, and are void and invalid and cannot be enforced on the part of the corporation or its assignee. J. Walter Thompson Co. v. Whitehead, 56 N.E. 1106; Meyers Mfg. Co. v. Wetzel et al., 35 S.W. 896; New Hampshire Ins. Co. v. Kennedy et al., 36 S.W. 709; Bradley Metcalf v. Armstrong, 68 N.W. 733; Pioneer Saving & Loan Co. v. Eyer et al., 87 N.W. 1058; G. Heilman Brewing Co. v. Piemeisl, 88 N.W. 441; Ashland Lumber Co. v. Detroit Salt Co. et al., 89 N.W. 904; Ehrhardt v. Robertson, 78 Mo.App. 404.

The case was submitted by agreement, upon the complaint, answer and stipulation of facts; and the submission was made by express request and consent of appellant's counsel. The case, so submitted, was considered by the court without objection on the part of appellant. He cannot now question the propriety of the proceeding. Aldrich v. Carpenter (Mass.) 35 N.E. 456; Webster v. Fleming (Ill.), 52 N.E. 975; Sugg et al. v. Thornton, 9 S.W. 145; State to use of Mayer v. O'Neill et al., 52 S.W. 241; Watkins v. National Bank of Lawrence et al., 32 P. 914; Perkins v. Fish et al., 53 P. 901; Work et al. v. Kinney, Sheriff, et al., 63 P. 596.

OPINION

COCHRANE, J.

This is an appeal from a judgment. Appellant, a national banking corporation at Minneapolis, Minn., sued as transferee of two promissory notes given by the respondent for the purchase price of a wind stacker bought by him from the Northwestern Wind Straw Stacker Company of Minneapolis, a Minnesota corporation. The defendant, by his answer, admitted the making of the notes to the Northwestern Wind Stacker Company and denied the other allegations of the complaint; averred that the notes were given for the purchase price of a Maple Bay Farmers' Friend Automatic Wind Straw Stacker, bought upon an express warranty, which is set out in the answer; that the stacker failed to work as warranted; that the company was unable to make it fulfill the warranty, and that the defendant thereupon, pursuant to the terms of his contract, returned the stacker at the railroad station and to the company's agent with whom he had contracted for its purchase, and the return of the stacker was accepted by such agent of the company; that defendant thereupon became entitled to a surrender of his notes. He demanded that they be returned to him, but the company failed and neglected to return the same. He alleged that plaintiff purchased the notes after maturity, with knowledge of defendant's defense thereto; that the stacker company was a foreign corporation, organized under the laws of the state of Minnesota, and at the time defendant contracted with it had failed to comply with the provisions of sections 3261 and 3263, Rev. Codes 1899, and never at any time complied therewith; that because of such noncompliance the contract and note were wholly void in behalf of such corporation and its assigns. Defendant prayed judgment that the action be dismissed, for his costs, and such other relief as might be proper.

After a jury had been impaneled and sworn to try the case, and before plaintiff had sworn a witness or offered the notes in evidence, defendant's counsel objected to the plaintiff's introducing any testimony or any proof in support of its cause of action on the ground that it was estopped from maintaining the action under the laws of North Dakota, because it claimed as assignee of a foreign corporation which had not complied with the laws of the state relative to the doing of business therein by foreign corporations, and for the reasons set forth and contained in the stipulation of facts on file. This objection was sustained by the court, and on defendant's motion the action was dismissed and judgment entered for the defendant. These rulings of the court were severally excepted to and are assigned for error upon this appeal.

At the time defendant's objection was made to any evidence and sustained by the trial court, there was on file with the clerk a stipulation of facts entered into between the attorneys, as follows: "That upon the trial of the action the following facts are stipulated to be true for all purposes and intents in the trial of said cause, subject to such objections to the same as might be made for irrelevancy, incompetency and immateriality if the same had been asked from witnesses on the trial of the cause, to wit: That the Northwestern Wind Straw Stacker Company is and was a foreign corporation organized under the laws of Minnesota, and was such corporation at all times mentioned in the complaint and answer herein. That at the time of making the contract set forth in the answer, and at the time of the making and delivery of the promissory notes sued upon in the action, the Northwestern Wind Straw Stacker Company was doing business in North Dakota and had appointed, among other resident agents, to handle and sell their articles, one Frank Collins, at Willow City, being the person from whom defendant purchased the wind straw stacker mentioned in the answer, and being the agent of said company with whom the contract of purchase was made, and to whom the promissory notes sued upon were delivered for said company. That at the time of making the contract of purchase with said company by the defendant, and at the time of the execution and delivery of the promissory notes sued upon, the company had failed in any manner to comply with the provisions of sections 3261 and 3263, Rev. Codes 1899, relative to the admission of foreign corporations to do business in the state, and that the stacker company at no time up to the commencement of the action had in any manner complied with such statutes. That the facts hereinbefore referred to were entirely unknown to the plaintiff. The first notice plaintiff received of these facts was communicated to it at the time the defendant served his answer on plaintiff's attorney setting out the facts as above set forth, and after investigation on the part of plaintiff in regard to the allegation of defendant therein the facts were discovered to be as above set forth."

Preliminary to a consideration of the case proper, counsel for respondent has made and urged a motion to dismiss the appeal and strike out the statement of the case and to affirm the judgment, for which he assigns many reasons. Few of the objections made are grounds for dismissal. Among other grounds of motion, he claims that the notice of appeal was not served upon the clerk of the district court, and that no proof of such service was filed. The notice of appeal was filed and is marked "Filed" by the clerk of the district court and this was sufficient notice to that officer. Section 5606, Rev. Codes 1899; Stierlen v. Stierlen, 8 N.D. 297, 78 N.W. 990. Another reason assigned is that the notice of appeal was not addressed to or served upon respondent or his attorney of record and that there is no proof of service of the notice of appeal. A. M. Christianson acted for respondent and signed all papers as his attorney up to the entry of judgment from which this appeal was taken. He now claims that the notice of appeal should have been served upon him individually, and that service upon Christianson & Webber was not a compliance with section 5732, Rev. Codes 1899. A written admission of service is indorsed upon the notice of appeal, signed by Christianson & Webber, as attorneys for respondent, admitting due and sufficient service thereof. It sufficiently appears that A. M. Christianson, the attorney of record on the trial of this case below, and who appeared for respondent in this court, is a member of the firm of Christianson & Webber; but the point is made that said firm was...