62 P. 380 | Or. | 1900
Lead Opinion
after stating the facts, delivered the opinion of the court.
It is contended by defendant’s counsel that the evidence introduced at the trial is insufficient to establish the corporate existence of the Jarvis-Conklin Mortgage Trust Co. or of the plaintiff, and that the court erred in finding otherwise, while plaintiff’s counsel insists that the transcript fails to show that Jones has any substantial interest in the result of the suit, and hence his plea is a nullity ; that said plea and answer do not deny, but only allege upon information and belief, a- lack of knowledge respecting the incorporation of said company and society, and therefore the allegations of the complaint in these particulars are not put in issue thereby ; that proof of the existence of a corporation cannot be demanded by parties who have entered into a contract with it; and that said answer, so far as it attempts to controvert the existence of the corporation, is in the nature of a plea in abatement, which, being joined with an answer to the merits, amounts to a waiver of said plea. The evidence shows that Jones is the equitable owner of the mortgaged premises, for whom Hogue probably holds the legal title in trust; and, having been made a party defendant, he undoubtedly had the right to set forth by answer as many defenses as he had : Hill’s Ann. Laws, § 73. Our statute, in prescribing the manner of controverting the allegations of a complaint, so far as applicable herein, is as follows : “The answer of the defendant shall contain (1) a specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief Hill’s Ann. Laws, §-72. It will be remembered that the plea and answer do not deny any knowledge or information concerning the incorporation of the Jarvis-Conklin Mortgage
The allegations, of the plea and answer were not denials of any knowledge or information of a material allegation of a fact in the complaint sufficient to form a belief (Cumins v. Lawrence County, 1 S. D. 158, 46 N. W. 182); but under the rule that in the interpretation of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties (Hill’s Ann. Laws, § 84; Jackson v. Jackson, 17 Or. 110, 19 Pac. 847; Corbett v. Wrenn, 25 Or. 305, 35 Pac. 658; Wyatt v. Wyatt, 31 Or. 531, 49 Pac. 855), such allegations, in my opinion, are
The issue thus presented being material, and, as I believe, properly pleaded, the question is whether the evidence introduced at the trial was sufficient to establish the corporate existence of the mortgagee and its assignee. Plaintiff’s counsel offered in evidence what purport to be copies of the articles of incorporation of the Jarvis-Conklin Mortgage Trust Co., and a-certificate of its corporate existence issued November 3, 1888, by Michael K. Mc-Grath, the then Secretary of State of the State of Missouri, to the effect that said company had become a body corporate, with all the rights and privileges granted to trust companies under the laws of the State of Missouri, and certified to November 30, 1897, by A. A. Lesuer, Secretary of State of that state, and attested by his official seal. There was also introduced in evidence what purports to be a printed copy of the memorandum of incorporation of the Law Guarantee & Trust Society, Limited, adopted April 11, 1888, and amended in part March 13, 1895, which amendment appears to have been approved
Judge Thompson, in his work on Corporations (section 220), in speaking of the manner of proving the existence of a corporation, says : “If it is a corporation created by a foreign statute, the statute must be proved as a fact, in the mode prescribed by the law of the forum for the proof of foreign laws. If the statute is a special law of a foreign state, the mode of proving it will usually be by an ex-
Another question to be considered is that of usury. Our statute provides, in effect, that on contracts interest at the rate of ten per cent, per annum may be charged,
For the failure to make proof of the corporate existence of the mortgagee and its assignee, the decree, in my opinion, ought to be reversed, and the suit dismissed
Rehearing
Decided 4 February, 1801.
On Petition for Rehearing.
delivered the opinion.
By a supplemental petition for rehearing, filed since the original was denied, it is insisted that the holding of the court to the effect that a mere affirmative averment of defendants’ want of knowledge or information sufficient to form a belief concerning a material matter alleged in the complaint is not a good denial, and presents no issue, is opposed to two former decisions of this court, namely, Robbins v. Baker, 2 Or. 52, and Sherman v. Osborn, 8 Or. 66. These cases are not referred to in the opinion, and, to the end that we may not be misunderstood, we have deemed it advisable to state our position more fully. For their answer the defendants Hogue and wife “allege that they have no knowledge nor information sufficient to form a belief as to whether the plaintiff is a citizen or subject of any foreign state, or is duly or at all organized or existing under or by virtue of any law or laws of Great Britain, or otherwise, or at all,” and “allege that they have no knowledge nor information sufficient to form a belief as to whether the Jarvis-Conklin Mortgage Trust Co. is, or ever was, a corporation organized or existing under or by virtue of the laws of the State of Missouri, or otherwise, or at all.” These are the allegations held to be insufficient to put the question of the incorporation of these two supposed corporations at issue. In Robbins v. Baker, 2 Or. 52, the court states the question under con