Ware Cattle Co. v. Anderson

• Decision Date: 20 January 1899
• Citation: 77 N.W. 1026,107 Iowa 231
• Parties: WARE CATTLE CO. v. ANDERSON ET AL.
• Court: Iowa Supreme Court

107 Iowa 231

77 N.W. 1026

WARE CATTLE CO.

v.ANDERSON ET AL.

Supreme Court of Iowa.

Jan. 20, 1899.

Appeal from district court, Monona county; George W. Wakefield, Judge.

Action at law, upon a written contract of agistment, to recover for the loss of 16 head of cattle, and for failure to properly care for the remainder of the cattle received. Defendants denied all responsibility for the loss or damage, and further pleaded that the cattle were diseased when they received them. It is also alleged that plaintiff is a foreign corporation, and that it has never complied with the law authorizing it to do business in this state. Defendants further pleaded as a counterclaim the pasturage of the cattle. In reply, plaintiff pleaded that defendants were estopped from relying upon plaintiff's failure to comply with the law applicable to foreign corporations, and certain other matters, which, so far as they are material, will be noticed in the body of the opinion. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendants appeal. Affirmed.Geo. A. Oliver and Wright & Hubbard, for appellants.

John S. Monk and McMillen & Kendall, for appellee.

DEEMER, J.

Plaintiff is a corporation organized under the laws of the state of Illinois. As such it entered into the following contract with defendants, to wit: “This is to certify that we, George Anderson and Co., of Decatur, Nebraska, have received from the Ware Cattle Company, of Chicago, eight hundred forty-six (846) head of cattle to pasture during the grazing season of 1894, which I agree to take care of in a faithful manner, keeping said cattle constantly in good pasture (not less than three acres per head), with an abundance of fresh water. I also agree to keep plenty of salt in the pasture, accessible at all times to said cattle. At the end of the pasture season I agree to deliver the said cattle, in good condition, to the said Ware Cattle Company, at Onawa, Iowa; the consideration for such care, pasturage, and ferriage both ways being $1.50 per head. I also agree to pay for all cattle lost or stolen, or for all that may die through neglect of attention in any manner. 750 head of said cattle are branded with H E on the left hip; 73 three year old cattle are branded with N N on the left side, and N on left hip; and 13 head are branded N on left side, and N on left hip. And it is also agreed that the pasturing will be paid for before leaving Nebraska. Signed, Decatur, Nebraska, June 8th, 1894. George Anderson & Co., by J. R. Anderson.” The action is bottomed upon this contract. Plaintiff claims that it delivered to defendants thereunder 846 head of cattle, and that defendants returned but 830. It further alleges that defendants failed to keep the cattle and furnish the pasture as agreed, and that by reason thereof it suffered the damage which it seeks to recover. There is some dispute in the evidence as to the number of cattle received and returned, but that matter was settled by the jury, and is not subject to review on this appeal.

1. The first point made by appellants is that appellee is not entitled to enforce its contract or maintain its action, for the reason that it has never complied with the laws of this state (Acts 21 St. Gen. Assem. c. 76) authorizing it to do business in this jurisdiction. That it has not complied with this law is conceded, but it does not appear that in making the contract or in bringing this suit it was acting contrary to the provisions of that statute. Appellants are residents and citizens of the state of Nebraska. The contract was executed in that state, and, save as to the delivery of the cattle, was to be performed there. True, some of the cattle were purchased in this state, and others were shipped from Omaha, Neb., through a portion of Iowa, and back into Nebraska, where they were delivered to appellants under the contract. Surely the corporation had the right to purchase cattle in this state, and it clearly had the right to transport them through the state without complying with the statute to which we have referred. See Colorado Iron Works v. Sierra Grande Min. Co., 15 Colo. 499, 25 Pac. 325;Manufacturing Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739. Moreover, appellants are in no position to object to these commercial transactions. If their contract had been made in this state, there would be room for argument; but, as it was not, they cannot be heard to complain. Appellee had the right to bring suit without complying with the statute. Cook v. Brick Co., 98 Ala. 409, 12 South. 918;Mandel v. Cattle Co., 154 Ill. 177, 40 N. E. 462;Mumford v. Trust Co., 4 N. Y. 463;Insurance Co. v. Way, 62 N. H. 622.

2. The court instructed the jury that the burden was upon the defendants to account for the cattle which they failed to return, and of this complaint is made. Reference to the contract will disclose that defendants undertook to deliver the cattle received thereunder, at the end of the season, in good condition, at Onawa, Iowa, and to pay for all lost or stolen, etc. But for this contract, it might be contended with some reason that the burden was on appellee, although the great weight of modern authority is to the contrary. See cases cited in 3 Am. & Eng. Enc. Law (2d Ed.) p. 750. The action is for breach of this contract, and appellee made out a prima facie case when it showed nondelivery in accordance with the terms of that instrument. Coggs v. Bernard, 2 Ld. Raym. 909; Cass v. Railroad Co., 14 Allen, 448. That appellee charged appellants with negligence in the petition is not regarded as controlling, for the reason that it was not required to prove more than was necessary to entitle it to the relief demanded. Code 1873, § 2729; Engle v. Railway, 77 Iowa, 661, 37 N. W. 6, and 42 N. W. 512.

3. In the fifth instruction the court said that the obligation of defendants was to keep the cattle constantly in good pasture, “but not necessarily the very best pasture,” and that it was for the jury to determine from all the evidence whether defendants did keep the cattle “constantly in good pasture.” Appellants contend that, from the qualification quoted, the jury may have inferred that it was their duty to keep the animals in the very best pasture. This is a strained and unnatural inference, and we do not think such conclusion is either fair or natural. The...