Zion Co-Operative Mercantile Ass'n v. Mayo

• Decision Date: 23 January 1899
• Citation: 22 Mont. 100
• Parties: ZION CO-OPERATIVE MERCANTILE ASS'N v. MAYO
• Court: Montana Supreme Court

22 Mont. 100

ZION CO-OPERATIVE MERCANTILE ASS'N

v.MAYO

Supreme Court of Montana.

Jan. 23, 1899.

Appeal from district court, Silverbow county; William Clancy, Judge.

Action by Zion Co-operative Mercantile Association against Edwin L. Mayo. From a judgment for defendant, plaintiff appeals. Reversed.

Chas. Mattison, for appellant.

BRANTLY, C. J.

The complaint herein alleges that the plaintiff is a corporation organized and doing business under the laws of the state of Utah. It then proceeds to allege, as a cause of action against the defendant, that between the 22nd day of August and the 2d day of September, 1896, the plaintiff shipped to the defendant from Idaho Falls, Idaho, four car loads of potatoes, of the value of $1,060.24, to be sold by him on commission at Butte, Silverbow county, Mont.; that the defendant received and sold them for $1,060.24; and that, after allowing the defendant credit for his commission and for all proper disbursements, there is due from him to the plaintiff $522.98, which the defendant, upon demand, refuses to pay. The answer admits the receipt of the potatoes, and alleges as a defense full payment of everything due. It also denies generally all the other allegations of the complaint. Upon the trial, after a jury had been selected, the plaintiff offered proof of its claim. The defendant thereupon objected to the introduction of any evidence by the plaintiff, on the ground “that it appeared that the defendant was a foreign corporation, organized and doing business under the laws of Utah, but that it did not appear that it had complied with the provisions of division 1, pt. 4, tit. 11, §§ 1030-1038, of the Civil Code of Montana.” This objection the court sustained, and thereupon, at the request of defendant, directed the jury to return a verdict for the defendant. From this action of the court the plaintiff appeals.

The court below, in the trial of this cause, evidently proceeded upon the idea that, in order to maintain a suit in the courts of this state to enforce a contract made within this state, a foreign corporation must allege and prove that it has complied with the laws of this state entitling it to do business here, and to make contracts of this character. We do not understand this to be the law. Mr. Thompson, in his Commentaries on the Law of Corporations, at section 7965, after discussing this question fully, concludes as follows: “The better opinion, therefore, is that, in an action by a foreign corporation to enforce a domestic contract, it is not only not necessary for the corporation to aver and prove in the first instance its compliance with the domestic statutes entitling it to do business within the domestic state, but, that, unless the defendant makes an averment of noncompliance in distinct terms, he cannot introduce evidence to show that such...