Transradio Press Serv. Inc. v. Whitmore., 4750.

• Decision Date: 01 May 1943
• Docket Number: No. 4750.,4750.
• Citation: 137 P.2d 309,47 N.M. 95
• Parties: TRANSRADIO PRESS SERVICE, Inc.,v.WHITMORE.
• Court: New Mexico Supreme Court

47 N.M. 95

137 P.2d 309

TRANSRADIO PRESS SERVICE, Inc.,

v.WHITMORE.

No. 4750.

Supreme Court of New Mexico.

May 1, 1943.

Appeal from Fifth Judicial District Court, Chaves County; Compton, Judge.

Action by Transradio Press Service, Inc., against W. E. Whitmore, doing business as Radio Station KWEW, to recover amount allegedly due under written contract whereby plaintiff furnished defendant certain news service. From an order sustaining defendant's plea in abatement, the plaintiff appeals.

Order reversed and cause remanded with directions to deny plea in abatement and for further proceedings.

Generally, pleas in abatement, like other affirmative pleas, cast the burden on plaintiff or defendant pleading them.

E. E. Young, of Roswell, for appellant.

Frazier & Quantius, of Roswell, for appellee.

BICKLEY, Justice.

The plaintiff (appellant) a New York corporation, maintaining its principal place of business there, entered into a written contract to furnish the defendant, the owner and manager of a radio station in New Mexico, a certain news service described in said written contract. The contract was to continue for 18 months, and in the absence of 3 months' notice prior to the expiration of the original or any extended time thereof, given by either party to the other, should be extended for a time equal to the first term of the contract. The contract sued on and attached to the complaint as a part thereof contains 21 numbered paragraphs expressing the covenants and agreements of the parties.

Plaintiff alleges that it furnished the services contracted for and received only part payment therefor and sues for a balance alleged to be due.

The defendant filed his plea in abatement presenting the issue of non-compliance with the provisions of § 32-206, N.M. S.A.1929 (54-804, Comp.1941) and consequent abatement of the action as provided by § 32-207, Comp.1929 (54-805, Comp.1941) the material portion of which is as follows: “Until such corporation so transacting business in this state shall have obtained said certificate from the State Corporation Commission, it shall not maintain any action in this state, upon any contract made by it in this state.”

The plea in abatement alleged that plaintiff had been engaged in business in this state at the time of the execution of the contract and thereafter and “that the contract sued upon was consummated in Roswell, Chaves County, New Mexico.”

The plaintiff answered this plea admitting that it is a New York corporation and that it has not qualified to do business in New Mexico and alleged that it is not doing business in this state nor was it at the time the contract sued on was executed, as contemplated by § 32-206, N.M.S.A. 1929, and denied the allegation of the plea with reference to the alleged consummation of the contract in Roswell, New Mexico. A hearing was had upon the plea in abatement, the proofs consisting of the pleadings, stipulations of the parties and evidence given orally and by deposition.

The parties requested specific findings of facts and conclusions of law which were refused, the court making its own.

Among the findings designated as findings of fact are the following:

“3. That the contract between the Plaintiff and the Defendant whereby the Plaintiff was to furnish the said Defendant with said news service was consummated in Roswell, New Mexico, leaving only the formality of executing the written contract, and that the Defendant accepted and signed the said written contract in Roswell, New Mexico, and the Plaintiff signed the same in the State of New York after the same had been signed by the Defendant in the State of New Mexico, the said written contract carrying out the terms of the agreement entered into between the parties.”

“5. That said contract was consummated in the State of New Mexico.”

Subsequently an order was entered sustaining the plea in abatement and decreeing that the cause abate unless and until the plaintiff qualified to do business in the State of New Mexico.

The appellant (plaintiff) challenges the correctness of the court's findings and conclusions and decisions heretofore quoted or summarized. Appellant asserts that finding No. 5 partakes more of the nature of a conclusion of law than a finding of fact. It is perhaps a mixed conclusion of fact and law. The appellant contends that the decision in this case is controlled by our decision in Alexander Film Co. v. Pierce, 46 N.M. 110, 121 P.2d 940, where it was held:

“A contract entered into by foreign corporation with New Mexico resident for preparation of publicity films to advertise New Mexico resident's business, to be shown upon screens of theatres in New Mexico, which contract stipulated that it should not be binding upon corporation until countersigned and acknowledged in writing by a home office official, and which contract was countersigned by home office official in Colorado, was required to be considered as made in Colorado”

Appellee seeks to distinguish that decision on the ground that there is absent from the contract involved in the case at bar, the language appearing in the Alexander Film Co. contract as follows: “This subscription shall not be binding upon the Film Co. until countersigned and acknowledged in writing by a home office official.” This language though relied upon to a degree in the Alexander Film Co. case is not essentially a determinative factor. The general rule relied upon in that case is that the place of a contract is the place where the last act necessary to the completion of the contract was done.

It appears from the evidence that there were conversations in Chicago and in Roswell, and letters exchanged between the parties concerning the entering into of a contract for the service the plaintiff purposed to furnish and the defendant purposed to employ. It is equally apparent that the defendant knew that a written contract was required to be entered into. Negotiations had been conducted between the parties for several months prior to the execution of the contract. When agreement had been reached, the contract was prepared by the plaintiff in New York City, sent by mail to the defendant in New Mexico, signed by him and all...