Walden v. Automobile Brokers, Inc.

Decision Date01 May 1945
Docket Number31501.
Citation160 P.2d 400,195 Okla. 453,1945 OK 145
PartiesWALDEN et al. v. AUTOMOBILE BROKERS, Inc.
CourtOklahoma Supreme Court

Rehearing Denied May 22, 1945.

Appeal from District Court, Kay County; R. O. Wilson, Judge.

Action by Automobile Brokers, Incorporated, a corporation, against Dr. Dewey H. Walden and another to rescind a contract and to recover damages in connection therewith growing out of the sale of an automobile by plaintiff to named defendant. From an adverse judgment, defendants appeal.

Affirmed.

Syllabus by the Court.

1. The phrase 'transacting business,' as used in 18 O.S.1941 § 452, means the doing or performing of a series of acts which occupy the time, attention, and labor of men for the purpose of livelihood, profit or pleasure.

2. A single or isolated transaction of a corporation, whether local or not, will not be void under 18 O.S.1941 § 452 because of the failure of the corporation to comply with the provisions of said section.

3. A chattel mortgage is good between the parties whether or not it is properly authenticated as required by the statute for filing in the office of the county clerk.

4. A joint assignment of error must affect all jointly and not severally as to all who join in it, or it will be good as to none.

5. Where a request for separate findings of fact and conclusions of law is not made until after the court has announced what the judgment will be, it is not reversible error to refuse such request.

O. B Martin, of Blackwell, for plaintiff in error Dr. Dewey H Walden.

John M. Lawrence, of Oklahoma City, pro se.

Wertz, Hiebsch & Zacharias, of Wichita, Kan., and Neal A. Sullivan, of Newkirk, for defendant in error.

PER CURIAM.

On the 26th day of September, 1942, Automobile Brokers, Incorporated, a corporation, hereinafter referred to as plaintiff, filed its action against the defendants Dewey H Walden and John M. Lawrence to rescind a contract and to recover the damages in connection therewith growing out of the sale and delivery of an automobile by the plaintiff to Dewey H. Walden. Judgment was for the plaintiff against both defendants. There was a judgment in favor of defendant John M. Lawrence against Dewey H. Walden. Both defendants appeal and join in a common petition in error.

The evidence substantially discloses that on June 18, 1942, Dewey H. Walden went to Wichita, Kansas, to the place of business of plaintiff for the purpose of purchasing the automobile in question. At that time he signed a purchase agreement. He did not have the certificate of purchase required to be obtained by the Federal Government. Being a physician he was assured that he was qualified to obtain the certificate and returned to his home in Blackwell, Oklahoma, obtained the certificate and on or about July 24, 1942, returned to the place of business of plaintiff in Wichita, Kansas, and there executed a second agreement to purchase the automobile in question. Subsequent thereto the salesman in charge of the sale of the automobile to the defendant Walden went from his place of business in Wichita, Kansas, to the place of business of Dewey H. Walden for the purpose of delivering the automobile. When he arrived at the place of business he was told by the defendant Walden that the wife of defendant was not satisfied with the transaction and desired to take a ride in the automobile. The agent, Paul Seifert, left the chattel mortgage and the notes representing the mortgage transaction in the office of the defendant Walden and took the wife of the defendant for a demonstration ride in the automobile. He returned to the office of the defendant Walden who then and there executed the notes and chattel mortgage, delivered them to the agent Seifert who delivered them to the place of business of the plaintiff after which they were transferred to a finance company. Subsequent to the transfer it was discovered that there was inserted in the mortgage the following clause, 'mortgagor granted nine months extension on any or all payments.' The finance company demanded that plaintiff repurchase the paper and this was done. This action resulted.

The closely contested question of fact in the case at bar is whether or not the agent, Paul Seifert, inserted the clause by writing it in on a typewriter in the office of the defendant Walden or whether it was placed therein without the knowledge and consent of the plaintiff or of Paul Seifert, the agent of the plaintiff. The court found in favor of plaintiff on this issue and there is ample evidence to sustain the finding of the court in this respect. Subsequent to the date of the execution of the notes and mortgage to the plaintiff by the defendant Walden a chattel mortgage was executed to the defendant John M. Lawrence for legal services arising prior to the date of the execution of the mortgage to the plaintiff and as stated above he appears herein as a joint plaintiff in error.

It is first argued that the judgment cannot be sustained for the reason that the court erred in holding that the plaintiff was not doing business in the State of Oklahoma within the purview and meaning of 18 O.S.1941 §§ 451-454 which, in effect, denies the right of a foreign corporation the use of courts of this state and declares a contract made in violation of the terms of the enactment void as to the corporation where there is not a compliance with the provisions. We are of the opinion and hold that the court did not err in finding that the acts and conduct of plaintiff did not constitute doing business within the State of Oklahoma. Fuller v. Allen, 46 Okl. 417, 148 P. 1008; Harrell v. Peters Cartridge Co., 36 Okl. 684, 129 P 872, 44 L.R.A.,N.S., 1094; Fruit Dispatch Co. v. Wood, 42 Okl. 79, 140 P. 1138; Dunn v....

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