22 Mont. 100 | Mont. | 1899
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 22d 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 $1,060.21, to be sold by him on commission at Butte, Silver Bow county, Mont.; that the defendant received and sold them for $1,060.21; 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.
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 busi-J ness 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 best 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 was the fact.” The following authorities support this view: 8 Am. and Eng. Ency. Law, 315, and note; S. P. R. R. Co. v. Purcell, 77 Cal. 69, 18 Pac. 886; Nelms v. Edinburg-American Land Mortgage Co., 33 Am. and Eng. Corp. Cases, 27, (Ala.) 9 South. 141; O'Reilly, Skelly & Fogarty Co. v. Greene (City Ct. N. Y.), 40 N. Y. Supp. 360; Nicoll v. Clark, (Com. Pl.) 34 N. Y. Supp. 159. We are aware that the authorities are somewhat in conflict upon this question, but this view seems to be so consonant with reason that we adopt it as establishing the better rule.
The conclusions here reached are upon the record as presented in this Court. The defendant may so reform his answer in the court below, if he can do so, as to properly present the question, for adjudication when the cause is tried again.
The judgment of the District Court is therefore reversed, and the cause remanded, with directions to proceed in accordance with the conclusion announced herein.
Reversed and remanded.