Lead Opinion
This is аn action brought to foreclose a materialman’s lien under the provisions of the mechanic’s lien law of this state. One Driessel was the owner of the premises and contracted with one Morrison for the construction of a dwelling-house on the premises described in the complaint. It is alleged in the amended complaint that the plaintiff, who is respondent here, is a corporation organized under the laws of the state of Washington, and doing business in the town of Lewiston, Idaho; that said Driessel is the owner of the premises described in the complaint, and that the defendant Morrison was the contractor and agent of Driessel, and as such agent entered into a contraсt with the respondent, whereby it was to furnish the material for the construction of a certain dwelling-house; that the respondent furnished the material between the twenty-third day of November, 1904, and the fifteenth day of March, 1905, which material was actually used in the construction of said building, of the agreed value of $552.47; that there was thereafter paid on said account $300.98, leaving a balance due of $251.49, together with interest thereon, and that the plaintiff, within sixty days from March 15, 1905, the date of furnishing the last item of said lumber, duly filed its claim of lien on the
It appears from the testimony in the case that there were two contracts entered into between Morrison and Driessel. The first was for the building and construction of a dwelling-house which was completed on January 16, 1905, and the respondent rendered him a bill, or a statement, on the 20th of January, for all the lumber that he had used in the construction of said dwelling-house. It also appears from the record that Driessel rented the house before or about the time it was completed, and the tenants took possession thereof. Thereafter they desired a porch built on to said house, and it would appear that they expressed their desire to Driessel and he consented to have a porch built, and on the 13th of March, 1905, fifty-nine days after the delivery of the last item of material under the first contract, he entered into another contract with Morrison for the construction of said porch, and on that date Morrison ordered the lumber for its construction from the respondent, to the amount of about $25, and the respondent furnished the lumber for said porch on the thirteenth and fifteenth days of March. The respondent filed its materialman’s lien on the eleventh day of May, 1905, fifty-seven days after furnishing the last material for the porch.
It is first contended by counsel for appellant that as there were two separate contracts, one for the construction of the house and the other for the construction of the porch, that said contracts had no connection with each other and were entirely separate and severable, and that the last one cannot be tacked on to the first, and thus keep alive the materialman’s
The evidence shows beyond a doubt that the house was constructed under one contract and the porch under another and separate contract. It also shows that the house was completed about the sixteenth day of January, 1905, and that the owner leased the house about the time of its completion and the tenants took possession. It also appears that the owner lived in Genesee, Latah county; that he went to Lewiston on the 13th of March and his tenants persuaded him to have said porch constructеd, and on that date he made a contract with the appellant Morrison to erect said porch. The contract for the porch was not made until about fifty-nine days after the respondent had furnished the last material for the construction of the house.
The court in its findings of fact virtually finds that the house and porch were constructed under one contract, but that finding is not supported by the evidence. The secretary of the respondent company testified that he did not know the house was completed on or about the sixteenth day of January, but his testimony is not very clear on that point. He testified further that Morrison told him that he put the lumber furnished on the 13th and 15th of March into the porch, while Morrison swears positively that the house was built under one contract and the porch under another and separate contract. The fact that the respondent presented Morrison with an itemized statement of all the lumber furnished for the construction of the house on the 20th of January, 1905, is very suggestive of the fact that the respondent was informed that the’building was completed, as Morrison testified on the completion of a building the company furnished him an itemized statement of the material furnished and that he checked it over to ascertain whether or not it was correct, but does not testify that he informed respondent that the contract was completed or that it had knowlédge of that fact. There is no positive testimony in the record showing that the respondent had information that the house and
It is contended by counsel for respondent that it had no knowledge that Morrison and Driessel had one contract for the house and one for the porch, and that the contract, so far as it was concerned, was continuous and entire and the time within which to file a lien dated from the date of the last item of material furnished. That, no doubt, was the theory upon which the trial court rendered its decision.
Among other authorities cited by respondent is the case of Darlington Lumber Co. v. Karris,
Where materials are furnished for the same building or improvement in installments and at intervals, and the parties intend them to be included in one account in settlement, the entire account will be treated as a continuous and connected transaction, and the lien limitation begins to run from the last item of the contract. (Jones & Magee Lumber Co. v. Murphy,
Wliile there are some facts and circumstances tеnding to show that the respondent had notice of the two contracts referred to in this case, the evidence is not such as to warrant the reversal of the judgment on the ground that the respondent knew or had notice of those two contracts. The fact as to whether the respondent had information that the porch was built under a separate contract was within the possession and knowledge of the appellants, and they should have proved that fact by a preponderance of the evidence if they relied upon it, which they failed to do.
The question whether the plaintiff is entitled to maintain this action, it being a foreign corporation, is raised by the
It will be observed that it is not alleged that the plaintiff had complied with the provisions of section 10 of article 11 of the state constitution, in designating an agent upon whom process may be served; and with the provisions of section 2653 of the Revised Statutes as amended by the Laws of 1903, which provides that a foreign corporation shall file with the county recorder of the county in this state, in which is designated its principal place of business in the state, a copy of the articles of incorporation of said corporation, duly certified by the secretary of state of the state in which said corporation was organized, and a copy of such articles of incorporation duly certified by the county recorder, with the secretary of state.
It is contended that the allegations of said complaint place the respondent in the status of an individual whose contracts and dealings in this state are absolutely void unless it affirmatively appears that it has complied with the abоve mentioned provisions of our statute and constitution. The question presented may be stated as follows: When it appears from the complaint that the plaintiff is a foreign corporation, whether the fact of its not having complied with the laws of this state in reference to designating an agent and filing its articles of incorporation is a matter of defense to be pleaded affirmatively in the answer and proven by the defendant, or whether the plaintiff has affirmatively placed itself in a position so that it is incumbent upon it to allege and prove that it has complied with the laws of this state, and is entitled to do business in the state or maintain an action in its courts.
Counsel for the respondent contends that the right of the plaintiff to do business in this state is not disputed by the pleadings; that the defendant,- neither by demurrer nor an
The first case above cited, Ontario Bank v. Tibbitts, involved the foreclosure of a mortgage by a corporation, and the court there held that the complaint did not show that the plaintiff had complied with the provisions of ■ section 299, Civil Code of California, requiring foreign corporations to file their articles of incorporation and designate an agent uрon whom process could be served, and could not maintain an action or proceeding in relation to property owned by it in such county “until such articles of incorporation shall be filed in the place directed by the general law and by the provisions of that section.” The court there said, in considering that section of the statute: “The failure of the plaintiff to file a copy of its articles of incorporation in the office of the county clerk, being mere matter of abatement, should be specially pleaded by the defendants; otherwise it was waived. ’ ’ Said section 299 is different from the provisions of our own statute, in that it does not make it unlawful for a foreign corporation to acquire property in the counties of that state, but it provides that they must file their articles of incorporation within fifty days after the purchase, and it also further differs from the provisions of our statute, in that it provides that such corporation shall not maintain any action or proceeding until their articles of incorporation have been filed as provided by law. Under the provisions of that section, a corporation that had failed to comply with the law in regard to filing its articles of incorporation could begin an action, and the day before the action was tried, might file its articles of incorporation and thereby have the right to
The case of Phillips v. Goldtree,
In the case of Southern Pac. Ry. Co. v. Pursell, supra, which was a case under section 299 of the Civil Code of California, above referred to, the court held that the noneomplianee of thе railway corporation to file its articles of incorporation should be raised by answer, and unless specifically set up therein, want of proof of noncompliance with that law was not fatal to the verdict.
In the ease of Wetzel & T. Ry. Co. v. Tennis Bros. Co., supra, decided by the supreme court of West Virginia, it was there held under the provisions of the code of that state, providing that a foreign corporation not having complied with the laws of the state shall not be entitled to maintain any action in the courts of that state, that the failure of a foreign corporation, plaintiff, to so qualify may be pleaded in abatement in any action, suit or proceeding. The court held that
In Dahl v. Montana Copper Co.,
As we understand that decision, the supreme court of the-United States holds that the question of noncompliance by a foreign corporation with the laws of the domestic state must be raised by demurrer or answer in the trial court, and cannot be raised for the first time in the appellate court.
The court quoted from the Beining case as follows: “It is competent for them (the legislature) to attach a condition* to the maintenance of a common-law action, as well as one created by statute; and, when they have done so, its averment and proof cannot safely be omitted.”
It further said: “It is to be noticed that by the amendment of 1901, the enforcement of a contract made by a foreign corporation before it has obtained the required certificate is entirely abrogated. It is made incapable of enforcement because of the omission to procure the certificate before the contract was made. ’ ’'
The demurrer in that case was sustained, and the decision was based' upon the theory that the complaint should have contained an averment that such certificate had been procured before the making of the contracts which were the basis of the action. That decisiоn was by the appellate division of the supreme court of the state of New York, and on appeal the case was taken to the court of appeals. (See Welsbach Co. v. Norwich Gas etc. Co.,
In the ease of Cumberland Land Co. v. Canter Lumber Co. (Tenn. Ch.),
Thus it will be observed that one line of the above-cited authorities holds that noncompliance with the law of the domestic state is a matter of defense to be pleaded affirmatively by the defendant in his аnswer. The statutes upon which that line of decisions rests are construed by those courts to mean that a failure of a corporation to comply with the statutory conditions upon "which it may enter a state and do business does not operate to render its contracts wholly void, but merely operates to suspend the remedy of such corpora
The second line of decisions requires the foreign corporation to affirmatively allege and prove its compliance with the statutory requirements of thе domestic state, and is based upon a construction of their statutes that makes compliance with the terms thereof a condition precedent to the right to maintain the action in the courts of the domestic state. Other authorities hold, as did the supreme Court of the United States in Dahl v. Montana Copper Co., supra, that the incompetency of a foreign corporation to sue cannot be considered unless set up in the pleadings in the court below, and that a failure to comply with the provisions of the law will not be presumed in the absence of any allegation on the subject, and that objection cannot be first urged in the appellate court. It therefore remains for this state to adоpt one or the other line of those authorities as the rule governing such actions in this state.
It is contended by counsel for appellant that this court held in the case of Katz v. Herrick,
The court did not hold in that case that such contracts were absolutely void, but held that such contracts were not enforceable in the courts of this state by a noncomplying corporation. If a foreign corporation fails or neglects to allege
Section 4174 of the Revised Statutes provides seven grounds of demurrer, and the second ground is, “That the plaintiff has not legal capacity to sue. ’ ’ It was evidently intended by the legislature that the specific grounds of demurrer to a complaint must be stated in the demurrer. The ■ only ground of demurrer stated in the demurrer to this complaint is the failure to allege facts sufficient to constitute a .cause of action, which is the sixth ground of demurrer provided in said section 4174. Under that ground of demurrer neither of the other specific grounds of demurrer can be considered. Suffice it to say in this case that neither the demurrer nor the answer raised the question of the want of the respondent’s capacity to sue. That question might have been raised by either demurrer or answer. Section 4175 declares that the demurrer must distinctly specify the grounds on which any of the objections to the complaint are taken, and that unless it does so, the demurrer must be disregarded. Section 4177 provides that whenever any of the matters enu
Section 4178 provides that if no objection is taken either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action. We are therefore of the opinion that where objections may be taken to allegations of the complaint by either demurrer or answer, if they are not so taken, they are waived as provided in said section 4178.
We therefore hold with that line of authorities which holds that unless the fact of the compliance of a foreign corporation with our state law is put in issue by a demurrer to the complaint, or by answer, it is waived. In the case at bar, the only ground stated in the demurrer was that the complaint did not state facts sufficient to constitute a cause of action. It therefore did not raise 'the question of the capacity of the respondent to sue, and that question was not raised by the answer, and was therefore waived. We therefore hold that the question of the capacity of the respondent to sue was waived on the trial, and that it is too late to raise it on appeal.
From the foregoing we conclude that the judgment of the lower court must be sustained, and it is so ordered, with costs in favor of the respondent.
Rehearing
ON PETITION FOR REHEARING.
Appellants have filed a petition for rehearing, and insist that since the court in the original opinion held that there was no evidence in the record to support the finding made by the trial court to the effect that the house and porch were constructed under one and the same contract, the findings are therefore necessarily rendered insufficient to support the judgment. In order for-the plaintiff to recover, it was necessary for it to establish that it furnished the material to the contractor under one continuous contract with him, and that the lien was filed within the statutory time after furnishing the material. It is possible for this to be true, and still two or more contracts to have been made and to have existed between the owner of the building and the contractor or builder. Now, in so far as this finding has reference to the contract or contracts between the owner of the premises and the contractor, it is not supported by the evidence, for the reason that the evidence clearly shows that there was one contract for the main building and another and separate contract foB the porch. On the other hand, in so far as the finding had reference to the contract between the builder and the company furnishing the material, we hold that the finding is supported by the evidence. In this view of the case the findings are still sufficient to support the judgment.
Appellants urge that they ought to be granted a new trial in order to enable them to establish the fact that the lumber (jompany had actual notice of the completion of the contract and the making of the second contract. We are unable, however, to find anything in the record that would justify us in doing so. The court seems to have admitted all the evidence that appellants offered tending to establish the fact that .the company had notice. There is nothing in the rec