Watson v. Mmpire Cream Separator Co.

• Citation: 180 P. 685,66 Colo. 284
• Decision Date: 03 March 1919
• Docket Number: 9105.
• Parties: WATSON v. MEPIRE CREAM SEPARATOR CO.
• Court: Supreme Court of Colorado

180 P. 685

66 Colo. 284

WATSON v. MEPIRE CREAM SEPARATOR CO.

No. 9105.

Supreme Court of Colorado

March 3, 1919

Rehearing Denied May 5, 1919.

Department 3.

Error to District Court, City and County of Denver; Chas. C Butler, Judge.

Action by the Empire Cream Separator Company, a New Jersey corporation, against Hugh Watson. Judgment for plaintiff, and defendant brings error. Judgment affirmed.

Caesar A. Roberts and Leslie M. Roberts, both of Denver, for plaintiff in error.

William N. Vaile and Hamlet J. Barry, both of Denver, for defendant in error.

ALLEN J.

This is an action to recover an alleged balance due on the purchase price of goods sold and delivered. The plaintiff obtained judgment, and defendant brings error.

The plaintiff in error, defendant below, contends, in his brief that the trial court had no power to enter judgment in favor or the plaintiff. This contention arises from the following facts: After a verdict was rendered for the plaintiff, the defendant in a motion for a new trial set forth alleged facts showing that plaintiff was a foreign corporation, doing business within this state, and had not complied with the laws of Colorado relating to foreign corporations, whereby it would have the right to prosecute or defend any suit in this state. Assuming that the facts thus recited are true, under the circumstances appearing in the record in the instant case, the court nevertheless had the power to enter judgment for the plaintiff, and the contention above mentioned cannot be sustained. The defendant did not plead, in any manner, the plaintiff's noncompliance with the statute in question. As said in Utah Nursery Co. v Marsh, 46 Colo. 212, 103 P. 302, 'Noncompliance with * * * these statutes is a matter of defense.' In Illinois Sewing Machine Co. v. Harrison, 43 Colo. 362, 365, 96 P. 177 178, this court held:

'That the fact of noncompliance is a matter of defense to be pleaded by the defendant in bar of the action.'

The defendant's failure to plead noncompliance amounted to a waiver thereof. 19 Cyc. 1321; 12 R.C.L. 102, § 79. In Miellmier v. Toledo Scales Co., 128 Ark. 211, 193 S.W. 497, it is said:

'The failure of a foreign corporation to comply with the law of the state before it may maintain an action goes to its capacity to sue, and, unless it complies with the law, it has no capacity to sue.'

And in 30 Cyc. 98, it is said:

'If in fact the capacity (to

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