236 N.W. 471 | S.D. | 1931
Plaintiff sues to recover from defendant a balance claimed to be due on open account. Verdict for plaintiff, and defendant appeals from the judgment and an order denying a new trial.
A number of assignments of error pertain to the receipt and rejection of evidence. We have carefully considered the evidence, and think there is no prejudicial error in any of the rulings upon the receipt or rejection of evidence. A large amount of correspondence was introduced over objection, but most, if not all, of this had some bearing upon the issues as to appellant’s individual liability. No useful purpose would be attained by reviewing the evidence in detail, and, as the record1 is voluminous to do so would make this opinion unnecessarily long.
Another assignment seeks to raise the right of respondent, a nonresident corporation, to maintain this action in this state, because it has not complied with the laws of this state by filing a copy of its articles of incorporation and appointing a resident agent upon whom process can be served. Appellant denies 'that there was any contract with respondent in his individual capacity. If that is true, respondent cannot recover because it has no cause of action, and not because it has no right to sue. If the contract was, as appellant contends, a contract with the corporation, the corporation is not a party and has not raised the question. The defenses, one that no contract was made and the other that the contract was made ixr this state, are inconsistent, axid, while they may be pleaded
Several exceptions were taken to the refusal of the court to give certain requested instructions. The first requested instruction was to the effect that the mere fact that plaintiff charged defendant personally with the items did not of itself prove appellant’s individual liability therefor. While this instruction is proper, its refusal was not prejudicial, for the instructions given by tire court carefully outlined the issues, an-d the duty of the jurors in determining the facts.
Another instruction seeks to cover the question concerning the right of the respondent to maintain this action, and in effect asks the court to instruct the jury that, as plaintiff entered into a specific contract fo-r the purchase and sale of the goods at Redfield, S. D., the plaintiff cannot recover as a foreign corporation, not having complied with the laws of this state. This puts in issue the place where the contract was made. It is appellant’s theory that, if the contract was made at Redfield, respondent could not maintain this action in the courts of this state, because it is a nonresident corporation and has not filed a copy of its articles of incorporation with .the secretary of state and appointed a resident agent upon whom service of process may be served, as required by chapter 7, P. C., sections 8900-8916,' Rev. Code 1919. ' No instruction was given by the court covering this issue. We do not think, however, we should enter into a discussion at this time of the rights of foreign corporations to do business or maintain actions in this state. Some of the items are shown to have been furnished and charged in response to quotations and orders made or furnished by mail. The requested instruction is based upon the assumption that there--was a fixed and definite contract as to all items of the entire account preventing any recovery. The jury found1 to the contrary, and, since the instruction does not allow for a find
The other requested instructions pertain to the personal liability' of plaintiff as distinguished from the liability of the corporation. There instructions we think were sufficiently covered by the court’s instructions in which the court told the jury that the first ■matter for them to determine was whether or not the items on account were sold and delivered to the corporation or to the defendant personally, and in these instructions the court quite fully outlined the law governing. We 'have carefully considered! the evidence and the numerous assignments of error, and are satisfied that there has been no prejudicial error disclosed by the record.
The judgment and order appealed from are therefore affirmed.