Union Interchange, Inc. v. Parker

• Decision Date: 21 November 1960
• Docket Number: No. 9937,9937
• Citation: 357 P.2d 339,138 Mont. 348
• Parties: UNION INTERCHANGE, INC., a Corporation, Plaintiff and Appellant, v. John L. PARKER and Woodrow Parker, doing business as Parker Brothers Dairy, Defendants and Respondents.
• Court: Montana Supreme Court

Page 339

357 P.2d 339

138 Mont. 348

UNION INTERCHANGE, INC., a Corporation, Plaintiff and Appellant, v.John L. PARKER and Woodrow Parker, doing business as Parker Brothers Dairy, Defendants and Respondents.

No. 9937.

Supreme Court of Montana.

Submitted May 5, 1960.

Decided Nov. 21, 1960.

Ernest F. Boschert, Billings, Alvin G. Greenwald, Los Angeles, Cal., argued orally for appellant.

F. N. Hamman, J. A. Turnage, Polson, argued orally for respondents.

HARRISON, Chief Justice.

This is an action to recover on a written contract wherein plaintiff sought to recover the sum of $1,350, together with interest, attorney's fees, and costs.The jury returned a verdict in favor of defendants and plaintiff appealed from the judgment entered thereon in the district court of the fourth judicial district, Lake County.

Sometime prior to execution of the contract in question, one of the defendants received a card through the mail inquiring if he was interested in selling his property; the card was mailed to this defendant by plaintiff from Los Angeles, California.The reverse side of the card, which constituted an invitation to plaintiff to have its representative call on the sender, was filled out by one of the defendants and returned to plaintiff.A representative of plaintiff, a California corporation, called on defendants and explained the possibilities of contacting out of state buyers by advertising in certain of plaintiff's publications.This representative was not a resident of Montana, nor did he maintain an office within the state.As a result of this conversation, defendants signed a printed contract for publication by plaintiff of advertisements for the sale of defendants' dairy farm.This printed form stated that the agreement contained therein would become effective only when accepted by plaintiff at its office in Los Angeles, California; it was sent by the representative to plaintiff's Los Angeles office where it was accepted and a letter of acceptance was mailed to defendants.Plaintiff published the advertisement in the issues of plaintiff's publications as called for by the contract and thereafter demanded payment from defendants.Certain correspondence between the parties followed, but payment was never forthcoming and plaintiff instituted this action.

By answer defendants admitted they had signed the instrument and that plaintiff had demanded payment, but denied the other allegations of the complaint.As a special defense, defendants alleged that the contract lacked consideration and mutuality; that it had not been accepted nor performed; and further that their signatures had been procured by fraud, misrepresentation, artifice, and deceit.

On the day set for trial, defendants proposed an amendment to their answer to which plaintiff objected and made a motion to strike.The objection and the motion to strike were taken under advisement, but no formal disposition was ever made of them.The additional defenses set forth in the amendment were to the effect that plaintiff had not complied with section 15-1701, R.C.M.1947, which requires foreign corporations doing business in Montana to file with the secretary of state a duly certified copy of their articles of incorporation, and also a statement showing the name of such corporation and the location of its principal office or place of business without this state, the location of the place of business or principal office within this state; the names and residences of the officers, trustees, or directors; the amount of capital stock; and the amount of capital invested in the State of Montana; and further that plaintiff had not complied with section 66-1910, R.C.M.1947, which requires persons or corporations desiring to carry on the business of real estate broker in the State of Montana to be licensed and bonded.

Section 15-1703, R.C.M.1947, provides that no domestic contracts entered into by a foreign corporation while doing business in this state shall be enforceable until the corporation has complied with the provisions of section 15-1701.Section 66-1920, R.C.M.1947, provides that no person or corporation carrying on the business of real estate broker within this state shall maintain an action in the courts of this state to recover for services alleged to be earned as a real estate broker without alleging and proving that they were duly licensed pursuant to section 66-1910, at the time the cause of action arose.

Plaintiff's objection and motion to strike were based on the contention that as a matter of law they were not doing business in the State of Montana within the purview of section 15-1701, nor were they carrying on the business of real estate broker within the purview of sections 66-1903and66-1910, which respectively define a real estate broker and require a license to engage in such activity.During the course of the trial, plaintiff also objected to much evidence, the content of which will be disclosed later, which was admitted in support of the allegations of the amended answer.

Plaintiff's specifications of error may be considered under four divisions.First, that plaintiff's rights were prejudiced by the filing of defendant's amendment to their answer; second, that plaintiff is a foreign corporation engaged in interstate commerce and therefore not subject to the provisions of sections 15-1701,15-1703; third, that plaintiff is not carrying on the business of real estate broker and therefore not subject to the provisions of sections 66-1903,66-1910,66-1920; and fourth, that plaintiff's rights were prejudiced by the variance allowed and directed by the trial court from the order of trial as provided by the code.

The trial court permitted defendants to make the amendment to their answer on the date set for trial, on the authority of section 93-3905, R.C.M.1947, which in part reads as follows:

'The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer, reply, or demurrer.The court may likewise, in its discretion, after notice to or in the presence of the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars.'

Time after time, this court, in interpreting this section and its identical predecessor in previous revisions of the code, has set forth the following proposition: 'The power to allow the amendments at any stage of the trial is within the discretion of the trial court, and its action in this behalf is not subject to review by this court, unless it is affirmatively shown that it abused its discretion to the prejudice of the adverse party.'Buhler v. Loftus, 53 Mont. 546, 559, 165 P. 601, 606.To cite all of the cases that state this proposition would serve no useful purpose; they can be found in the extended annotation following section 93-3905, R.C.M.1947.

It is manifest from these authorities, that in order for plaintiff herein to be entitled to a reversal on the first division of its specifications of error, it is necessary that plaintiff show wherein the trial court has abused its discretion in allowing the amendment, and that such abuse of discretion has resulted in prejudice to plaintiff.Plaintiff's contention seems to be that the abuse of discretion resulted from the fact that for many months defendants had knowledge of the fact that the plaintiff was a foreign corporation and with such knowledge available made no effort to amend their answer before the day of trial, and that upon presenting the proposed amendments, defendants offered no excuse whatsoever for their tardiness and delay, nor was any excuse requested by the trial court.Plaintiff states that it was prejudiced by this untimely amendment because it raised new issues which plaintiff was not prepared to meet.Plaintiff also contends it was in no position to request a continuance because its only witness, an employee, was from Los Angeles, California, and any further absence from his regular duties with the plaintiff in its Los Angeles office would cause additional and unnecessary expense to plaintiff.

The mere circumstance that defendants had knowledge of the facts for many months and offered no excuse for the delay in proposing their amendment should not be sufficient in itself to compel denial of the amendment by the trial court.In other words, it cannot be said that an allowance of an amendment where these conditions exist is necessarily an abuse of discretion.Other factors surrounding the proposal of the amendment should also be considered, and if from a consideration of all the factors involved it does not appear that the trial court abused its discretion in allowing an amendment, this court will not reverse the trial court's action.The policy of the law is to permit amendments to the pleadings in order that litigants may have their causes submitted upon every meritorious consideration that may be open to them; therefore, it is the rule to allow amendments and the exception to deny them.Cullen v. Western Montgage & Warranty Title Co., 47 Mont. 513, 529, 134 P. 302.There was no error in the trial court's allowance of defendant's amendment to their answer.

Furthermore, plaintiff is not in any position to claim that the trial court abused its discretion in allowing defendants' amendment.At the time the amendment was proposed, plaintiff did not make any effort to get a continuance, nor did it make any suggestion that it was not prepared to proceed; in fact, counsel for plaintiff, in commenting to the trial court on the motion before the trial court on the question whether plaintiff was a foreign corporation doing business in the State of Montana within the purview of section 15-1701, had this to say: 'We have many...