Vt. Farm Mach. Co. v. Ash.

• Decision Date: 28 January 1918
• Docket Number: No. 2085.,2085.
• Citation: 170 P. 741,23 N.M. 647
• Parties: VERMONT FARM MACH. CO.v.ASH.
• Court: New Mexico Supreme Court

23 N.M. 647

170 P. 741

VERMONT FARM MACH. CO.

v.ASH.

No. 2085.

Supreme Court of New Mexico.

Jan. 28, 1918.

Syllabus by the Court.

Where two parties enter into a verbal contract and agreement, and one of them assumes to reduce such agreement to writing, and in so doing does not correctly reduce such prior oral agreement to writing, but fraudulently embodies therein an entirely different agreement, and presents such writing to the opposite party for signature and execution, and fraudulently states to him that such writing contains the substance of their prior oral agreement, and such statements are relied upon and accepted as true, and said opposite party is thereby induced to sign such writing, without reading the same, having it read, or otherwise being advised of its contents, he may plead such facts and conduct as constituting fraud in defense to a recovery upon such writing.

The doing of a single act of business by a foreign corporation does not bring it within section 102, c. 79, Laws 1905, providing that “every foreign corporation, except banking, insurance and railroad corporations, before transacting any business in this territory, shall file in the office of the secretary of the territory a copy of its charter.”

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Transacting Business.]

Appeal from District Court, Curry County; McClure, Judge.

Suit by the Vermont Farm Machine Company against C. W. Ash. Demurrer to second amended answer sustained, and judgment for plaintiff, and defendant appeals. Reversed, with directions to overrule the demurrer to defendant's first defense.

The doing of a single act of business by a foreign corporation does not bring it within section 102, chapter 79, Laws 1905, providing that “every foreign corporation, except banking, insurance and railroad corporations, before transacting any business in this territory, shall file in the office of the secretary of the territory a copy of its charter.”

Patton & Bratton, of Clovis, for appellant.

Aldredge & Saxon, of Tucumcari, for appellee.

ROBERTS, J.

Appellee, a foreign corporation, filed suit in the district court of Curry county against appellant upon certain promissory notes executed by appellant, and alleged to be past due and unpaid. Copies of the notes were attached to the complaint, as was also a copy of a certain written order which was signed by appellant, alleged to have been delivered to the agent of appellee. Appellant filed a second amended answer in which he pleaded two defenses. The first, in substance, was: That on or about the 24th day of November, A. D. 1914, appellee was engaged in the manufacture and sale of cream separators, and had in its employ an agent who transacted the business which resulted in the signing of the contract and the giving of the notes by appellant; that appellant at the said time was engaged in the general mercantile business in Grady, Curry county; that the agent of appellee called on appellant, and that they entered into a verbal contract and agreement whereby appellee agreed to and did employ appellant as its agent at Grady, N. M., for the purpose of making sales of cream separators manufactured by appellee; that it was agreed between appellant and said agent that appellee should ship to appellant cream separators in such numbers and at such times as might be agreed upon between the parties; that appellant should receive such separators, keep them in in his possession, and make demonstrations thereof throughout the community, and that as a matter of settlement between the parties it was further agreed that when such separators were shipped and received by appellant he would execute his notes, payable to appellee, which notes were to be received by appellee and held by it until such time as appellant might be able to make sales of all or a portion of the separators shipped him; that in the event of a sale of the separators appellant should remit direct to appellee, whereupon appellee would cancel and return appellant's notes, or, in the event he was unable to make a sale of said separators, then and in that event he should have the right to return them to appellee, and in such case his notes should be canceled and returned; that the execution and delivery of the said notes were merely for the purpose of making a settlement and adjustment between the parties from time to time; that said agreement was verbal, and that after it had been reached appellee's agent assumed to reduce the same to writing, and he prepared and reduced to writing the written contract referred to in appellant's complaint as Exhibit A, and presented the same to appellant for signature; that when such written agreement was presented the agent of appellee told appellant that such writing was, in substance and effect, the same as they had agreed verbally, and that such agreement gave to him all the rights, privileges, and protection contained in the verbal agreement; that appellant did not read or have...