Bonham National Bank of Fairbury v. Grimes Pass Placer Mining Co., 111 P. 1078

111 P. 1078 | Idaho | 1910

AILSHIE, J.

This action was instituted to recover judgment on two promissory notes. The defendants Howard appeared and filed a demurrer. The demurrer was overruled and they declined to answer, and judgment was thereupon entered against them. This appeal is from the judgment.

The complaint was filed against the Grimes Pass Placer Mining Co., Ezra E. Howard and I. Y. Howard as defendants, and contains two causes of action separately stated.

The first cause of action was on a promissory note for the sum of $500 dated at Fairbury, Neb., September 16, 1908, payable to the order of Bonham National Bank of Fairbury,. and payable at the Bonham National Bank at Fairbury, Neb. The note was pleaded in haec verba, and the copy set out in the pleadings showed the note to have been signed by one A. E. Woodman in addition to the signatures of the defendants, in this action. The allegation of the complaint which immediately precedes the copy of the note is as follows: “That the defendants on or about September 16th, 1908, jointly and severally made, executed and delivered to the plaintiff their-promissory note in writing in words and figures as follows, to wit.” It is contended by.the appellant that the demurrer should have been sustained, for the reason that the note set out in the complaint is not the contract sued upon, for the reason that it purports to be a note signed by the defendants and Woodman instead of a note signed by the defendants as alleged by the foregoing quotation from the complaint.

This objection is not well taken. Although the copy of the note pleaded contained the name of another maker, that fact did not change the liability of the defendants sued. They were still jointly and severally liable for the payment of the note, and the fact that Woodman was also jointly and severally liable with them did not change or alter the liability of the other makers or make them any less jointly and severally liable as between themselves and the holder of the note. (See sec. 4147, Rev. Codes.) The demurrer was taken on the ground of insufficient facts to constitute a cause of action, and not on grounds -of “defect or misjoinder of parties defendant.” The complaint does state a “cause of action” against these defendants just as fully as it would be stated if Woodman had been joined as a party defendant. If there is a defect or misjoinder of parties defendant, that question should have been raised by demurrer on that ground (subd. 4, sec. 4174, Rev. Codes), and a failure to do so is a waiver of such ground. (Sec. 4178, Rev. Codes.)

The second cause of action was on a promissory note for the sum of $500, executed at Boise, Idaho, November 3, 1908, payable to the order of John A. Green, and this note was set out in full, and appears to have been signed by one G-. T. Joslin in addition to the defendants herein named. The same objection is made to this cause of action as to the first cause of action, on the ground that the note pleaded was executed not only by the defendants, but that Joslin had joined them as a joint and several maker. What we have said with reference to the first cause of action disposes of this question.

The demurrer alleged the further ground “that the plaintiff has no legal capacity to sue,” for the reason that the complaint shows that plaintiff is a foreign corporation, and that it does not allege a compliance by plaintiff with the foreign corporation laws of this state. The argument in this connection involves a somewhat complex proposition. While the complaint alleges that the plaintiff is a foreign corporation, and does not allege that it had in any way complied with the laws of this state with reference to foreign corporations doing business in this state, still it nowhere directly alleges that the plaintiff was, or ever had been, doing business in this state. If that fact has in any way been pleaded, it must be gathered from the general allegations of the complaint which show the nature of the contract and the transaction on which the cause of action is based. The first cause of action is clearly a Nebraska contract which was executed in Nebraska and was to- be performed in Nebraska. Under such circumstances we have no doubt but that the payee, if it finds it necessary, may come to this state and prosecute its action for the collection of the debt. The mere prosecution of an action for the collection of a debt contracted in another state and payable in another state is not “doing business” in this state within the meaning of the constitution (see. 10, art. 11) and the statute (sec. 2792) of this state. (Toledo Computing Scale Co. v. Young, 16 Ida. 187, 101 Pac. 257; Foore v. Simon Piano Co., 18 Ida. 167, 108 Pac. 1038.)

This case presents a new question with reference to a foreign corporation pleading compliance with the laws of this state in order to maintain an action in the courts of the state. We have heretofore held that where a plaintiff shows by its pleading that it is a foreign corporation, its complaint will be open to demurrer unless it further pleads a compliance with the constitution and laws of this state entitling it to do business in the state. (Valley Lumber Co. v. Driessel, 13 Ida. 662, 93 Pac. 765, 15 L. R. A., N. S., 299, 13 Ann. Cas. 63; Valley Lumber Co. v. Nickerson, 13 Ida. 682, 93 Pac. 24; Kiesel v. Bybee, 14 Ida. 670, 95 Pac. 20.) In those cases, however, the complaint alleged that the corporation was “doing business” in this state. In the complaint in this ease, no such allegation is to be found. The reason for the rule previously announced by this court would lead to the inevitable conclusion, however, that if the complaint shows that the plaintiff is a foreign corporation, it must then either show a compliance with the state laws entitling it to do business in this state, or show by the facts constituting its cause of action that the transaction sued on does not arise out of ‘ ‘ doing business within this state. ’ ’ If, therefore, the contract sued upon shows upon its face, as in the first cause of action in this case, that it is a foreign contract and that it did not arise out of domestic business or a domestic transaction, the complaint is not demurrable on account of the failure of the plaintiff to show compliance with the state law. If, on the other hand, the cause of action sued upon or the facts pleaded do not show a transaction or a contract such as would exempt the corporation from complying with the state laws, it should plead compliance, or its complaint will be subject to demurrer.

The transaction set up in the second cause of action presents a different situation from that presented by the first cause of action. There the contract is an Idaho contract. It does not appear from the face of the complaint whether the plaintiff procured the note in due course of business at its banking-house in Nebraska or purchased it within this state in the transaction of business here. Another peculiar feature about it is that the complaint does not allege that the plaintiff is- the owner and holder of this note, but rather alleges that “on or about December 13, 1909, said John A. Green by written indorsement assigned said note to this plaintiff.” We are not advised by this allegation whether the plaintiff is the owner of the note or is merely an assignee for collection. If the plaintiff is acting as a collection agent against the people of this state, that would amount to “doing business” within the meaning of the statute and constitution as much as if it were engaged in any other business in this state. We are, however, not required to pass on this phase of the question, for the reason that the demurrer was not taken to the causes of action separately but goes to the whole complaint, and the rule is that where a demurrer is lodged against a complaint generally which contains several causes of action, if any one of the causes of action will withstand the assault of the demurrer, then the demurrer should be overruled. (Asevado v. Orr, 100 Cal. 293, 34 Pac. 777; Hirshfeld v. Weill, 121 Cal. 13, 53 Pac. 402; Pomeroy’s Remedies and Remedial Rights, sec. 577.)

For these reasons the judgment must be affirmed, and it is so ordered. Coste awarded in favor of respondent.

Sullivan, C. J., concurs.

Petition for rehearing denied.