Uihlein v. Caplice Commercial Co.

• Decision Date: 28 June 1909
• Parties: UIHLEIN v. CAPLICE COMMERCIAL CO.
• Court: Montana Supreme Court

102 P. 564

39 Mont. 327

UIHLEIN v. CAPLICE COMMERCIAL CO.

Supreme Court of Montana

June 28, 1909

Appeal from District Court, Silver Bow County; Geo. B. Winston Judge.

Action by August Uihlein against the Caplice Commercial Company. Decree for complainant, and defendant appeals. Affirmed.

John J McHatton and Peter Breen, for appellant.

Kirk Bourquin & Kirk, for respondent.

SMITH J.

The complaint in this action alleges that at all times therein mentioned the plaintiff was the owner, and entitled to the possession, of lots 2 and 3, in block 16, of the Noyes & Upton Railroad addition No. 2 to the city of Butte, in Silver Bow county, and that the defendant, a Montana corporation, claims an interest therein adverse to plaintiff. The prayer is that the defendant be required to set forth the nature of its claims; that the plaintiff be decreed to be the owner of the premises, and the defendant adjudged to have no interest therein. Defendant for answer denied all of the allegations of the complaint, save that it is a corporation, and as an affirmative defense alleged that it has been the owner and in possession of the premises since July 1, 1893; that since that date it and its predecessors have been in the absolute, actual, exclusive, open, notorious, continuous, and adverse possession, claiming to own the same; "that in order to induce the John Caplice Company, the defendant's predecessor in interest, to handle its product (beer) exclusively, the Schlitz Brewing Company, a Wisconsin corporation, procured the land described in the complaint, and donated it and induced the said John Caplice Company to make buildings and improvements thereon, and that it contributed thereto for and in consideration of the said John Caplice Company exclusively handling and selling its product; and that the defendant succeeded to all rights with reference thereto in the handling and sale of the product of said corporation which were held by said John Caplice Company, and the said Schlitz Brewing Company gave it the exclusive sale of its product in and about the city of Butte, and assented to the transfer of said property and property rights by the John Caplice Company to it and donated the same to the defendant; that the said John Caplice Company and this defendant spent large sums of money in establishing a trade for the Schlitz Brewing Company's beer in and about the city of Butte, and in reliance upon the donation of said premises to the John Caplice Company and to it and on its purchase of the same from the John Caplice Company." It is further alleged that the plaintiff is an officer of the Schlitz Brewing Company, and holds the title to the premises for the corporation, which has never complied with the laws of Montana authorizing foreign corporations to do business or hold property in this state. A reply was filed putting in issue the affirmative allegations of the answer. However, it was admitted at the trial that the plaintiff holds the title to the property in question simply as trustee for the Schlitz Brewing Company. The cause was tried to the court, a jury having been waived. No findings of fact were requested or made, and the court entered a judgment declaring all claims of the defendant to be invalid, decreeing the plaintiff to be the owner of the premises and entitled to the possession thereof, and that his title thereto be quieted against all claims of the defendant. From this judgment and an order denying a new trial, the defendant appeals.

It appears to have been assumed in the district court that the action is one in equity to quiet plaintiff's title. The defenses relied on in the answer are (1) that the Schlitz Brewing Company donated the premises to the defendant's predecessor in interest; and (2) that the plaintiff cannot maintain the action for the reason that the Schlitz Brewing Company, the real party in interest, has not complied with the laws of Montana authorizing it to do business in this state. It is also contended by counsel that plaintiff cannot recover for the reason that the Schlitz Brewing Company has contracted to allow the defendant to remain in possession until the expiration of the latter's charter, in any event. It was admitted at the trial that the record legal title to the premises was in the plaintiff, and that the Schlitz Brewing Company had never filed in the office of the Secretary of State or with the clerk of Silver Bow county, or any county, a copy of its charter or articles of incorporation or any statement. No objection is made to the form or scope of the decree.

The court admitted in evidence a series of letters from the Schlitz Brewing Company to John Caplice & Co., one of the predecessors in interest of the defendant, and the answers thereto. These were objected to for the reasons that they were not properly identified, and that the letters of the brewing company were declarations in its own favor. We think the letters were properly admitted. They in connection with other testimony show that the Schlitz Brewing Company bought and paid for the ground in question, furnished the plans for the beer depot which was erected thereon and built the depot at its own expense, through the agency of the defendant's predecessor, John Caplice & Co., a corporation, which insisted upon and obtained credit on its account with the brewing company for all moneys expended by it for the land or upon the building. The transaction took place in 1892. The subject was initiated by a letter from the Schlitz Brewing Company to John Caplice & Co., dated Milwaukee, Wis., October 26, 1892, as follows: "We are in receipt of your favor of the 21st inst., and, as we note that the railroad insists upon our paying rent for the premises upon which the icehouse is to be built, we would prefer to purchase the property and own it ourselves. Please endeavor to buy the same for us at $2,400, or less if you can, and send us a plan of the lot showing the exact dimensions, giving the level of the railroad track and the street and the location of water and sewer. We will then have our architect make a plan for a substantial building in accordance with the suggestions which you will give us, and will endeavor to have the building completed as soon as possible." Under date of November 17, 1892, John Caplice & Co. wrote as follows: "We have completed purchase of lot for you as per instructions and have taken the liberty of drawing on you to-day for amount of purchase price, $2,400, and fee for recording deed $2.75 draft $2,402.75. The deed is now at the recorder's office and will be sent to you as soon as returned to us." And again, on November 28, 1892: "We enclose you herewith abstract of title and warranty deed to lot bought for you as per instructions." And with regard to the building (January 19, 1893): "We signed the agreement and bond as your agents. *** We can secure an architect here for you, one who will see that the building is properly built." It appears that the beer was shipped f. o. b. Milwaukee, and therefore became the property of the defendant and its predecessor before it reached Butte.

In order to maintain its defenses that the property had been donated to its predecessor, and that it was entitled to the possession of the same in any event under its contract of agency for the sale of beer, the defendant introduced the testimony of Charles Dillman, in substance as follows "My connection with the Schlitz Brewing Company began in December, 1892, in the capacity of traveling representative. I was traveling agent for the disposition of the product of their brewery and for making loans and closing contracts, and so forth. I first came to Butte in the early part of 1893. Then it was that my first relationship with the John Caplice Company began. I subsequently discovered that they changed their name to John Caplice & Co. I could not recall the month when that was, but it was in 1896. I remember when they ceased to do business under the name of John Caplice & Co. and took up the name of the Caplice Commercial Company. I know something about the details of that myself. I know about the organization. I was present at the time when they organized that company. I became interested in it about three months after the first steps were taken. At this initial meeting in October, 1897, it was understood and agreed that I would interest myself and become interested. The Joseph Schlitz Brewing Company did not know that. After we had agreed and the money was subscribed and the charter was in there or was sent to Helena, we all signed the...