MASTON v. GLEN LUMBER CO. et al.

MASTON v. GLEN LUMBER CO. et al.
1917 OK 99
163 P. 128
65 Okla. 80
Case Number: 8240
Decided: 01/16/1917
Supreme Court of Oklahoma

MASTON
v.
GLEN LUMBER CO. et al.

Syllabus

¶0 1. Corporations--Foreign Corporations--Payment of Fees--Statute. Section 1335, Rev. Laws 1910, requiring a foreign corporation, except those created solely for religious or charitable purposes. to file in the office of the Secretary of State a certified copy of its charter or articles of incorporation and to pay the fees required as a condition precedent to its right to transact business, applies, in reference to fees, to those specified in section 3253, Revised Laws 1910, and not to the license tax or fees designated in article 18, c. 72, Revised Laws of 1910.
2. Bills and Notes -- Affirmative Defenses--Pleading. In an action upon a promissory note, the burden of proof is upon a defendant who admits the execution and delivery of a note and pleads affirmative matter by way of defense.
3. Evidence--Best and Secondary Evidence--"Duplicate Original." Where different impressions of a writing are produced by placing carbon paper between sheets of paper and writing upon the exposed surface, the different sheets are "duplicate originals," which, if otherwise competent, may be introduced in evidence without accounting for the nonproduction of the others.
4. Sales--Defects--Burden of Proof. In order to constitute a defense in an action upon a note given in part for the purchase of a silo, where the defendant introduces evidence that live stock fed upon ensilage taken from said silo were damaged, he must go further and trace the improper condition of the ensilage and the damage to such stock to some defect in the silo itself.
5. Appeal and Error--Pleading--Discretion of Trial Court--Amendment of Pleadings. The granting or refusing permission by the trial court to amend pleadings after the trial has commenced rests within the sound judicial discretion of the trial court, and his action thereon will not be reversed here, unless it is shown that he had abused that discretion.

Erwin & Erwin, for plaintiff in error.
H. W. Harris and E. A. Foster, for defendants in error.

EDWARDS, C.

¶1 For convenience and brevity the defendants in error will be referred to as plaintiffs, and the plaintiff in error will be referred to as defendant, according to position in the lower court. This action was begun by the plaintiff, Glen Lumber Company, a corporation, in the district court, against the defendant, to recover judgment upon a note. The petition was verified, and among other things alleged that the plaintiff corporation was and had been duly and legally authorized to transact its corporate business in the state of Oklahoma. To this petition the defendant filed an answer as follows: (1) A general denial: (2) that the note sued upon was given in part for the purchase of a silo, and alleging false representations and breach of warranty and damage resulting therefrom; (3) that the note sued upon was executed under a specific agreement that the plaintiff would furnish an itemized statement of the account making up said note. and would correct any errors therein, which statement had never been furnished. Counts 2 and 3 of said answer were verified on belief of defendant. After preliminary motions and demurrers the plaintiff filed a general denial by way of reply. Thereafter, and on September 28, 1915, Fred Perkins and C. J. Carter moved to be made parties plaintiff as receivers of the Glen Lumber Company. Thereafter. and on the 6th day of October, 1915, the defendant filed objections to a reviver of said action, and moved to dismiss for the reason that more than one year prior to the date of making the motion to make said receivers plaintiffs, said Glen Lumber Company, a corporation, had forfeited its right to do business in the state of Oklahoma by failure to pay the state license tax for the years 1914 and 1915. Thereupon, on the 6th day of October, 1915, the court sustained the application of the said Perkins and Garter to be made parties, and overruled the objection to the revivor and motion to dismiss of the defendant. The defendant, on October 11, 1915, then asked leave to file a supplemental answer, showing the failure of the Glen Lumber Company to pay said license tax for the years 1913, 1914, and 1915, which application was overruled. The cause was tried on the 13th day of October, 1915, before a jury. The court ruled that the burden of proof was upon the defendant, and at the close of the plaintiff''s evidence, the defendant asked leave to amend his answer. His request was denied, and the court sustained a demurrer to the evidence, and gave judgment for the plaintiff on the note. The case in due time was appealed to this court. Numerous assignments of error are made and argued to the court. These will be considered in the order presented. The first proposition goes to the action of the court in its ruling in permitting the receivers to be made parties, reviving the action in the name of the receivers, overruling the objections to the revivor, and in overruling the application of defendant to file a supplemental answer to allege the failure of the plaintiff corporation to pay the state license tax for the years 1913, 1914, and 1915. The theory of the defendant is that the plaintiff, being a foreign corporation, may not maintain its action, on account of its failure to pay the state license fees required by article 18, c. 72, Revised Laws of 1910. Article 9 of chapter 15, Revised Laws of 1910, imposes certain requirements upon a class of foreign corporations seeking to do business within the state. Section 1335, being the first section of said article 9, requires foreign corporations, except those created solely for religious or charitable purposes, to file copies of their articles of incorporation with the Secretary of State before being permitted to do business in the state. Section 1336 provides for the appointment of agents. Section 1337 provides for a record of appointments. Section 1338 provides that contracts made without compliance are void. Section 1339 provides for the service of process upon such corporations. Section 1340 provides that such articles shall not apply wherever it would conflict with the powers of Congress or the federal laws with reference to interstate commerce. Then section 1341 is as follows:

"No foreign corporation, as above defined, which shall fail to comply with this article, can maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of contract or tort."

¶2 All of the sections from 1335 to 1341, inclusive, referred to were enacted by the Legislature of 1909. The primary purpose of these sections was to require the appointment of service agents within the state and for service thereon. The fees required to be paid by section 1335 are the fees due the Secretary of State as specified in section 3253, Revised Laws of 1910, for the recording of the certified copy of the charter, or the articles of incorporation required to be filed. These sections were under consideration and upheld, in the case of Goodner Krumm Co. v. J. L. Owens Mfg. Co.,

"For his second defense to the petition of the plaintiff, the defendant alleges and states: (1) That the note mentioned and set forth in plaintiff''s petition was made and delivered to the plaintiff, the payee of said note, among other considerations, for the purchase price of a certain silo," etc.

¶3 This effectually disposes of the contention under this assignment. The next assignment is that the court erred in refusing to allow the defendant to prove his defense. This assignment refers to the attempt, on the part of the defendant, to introduce a statement from one of the clerks working for the Glen Lumber Company to the defendant, to the effect that the plaintiff had charged him with stuff he did not get. The rule with reference to a statement by an agent is stated in 3 Eric. of Evidence. 643, as follows:

"The admissions and declarations, in order to be received as evidence against the corporation, must not relate to past events; they must have been made in the course of the transaction, so as to constitute a part of the res gestae."

¶4 And the record discloses that the statement sought to be introduced was made after the note had been executed, and is not shown to have been made by an agent while in the discharge of his duty as such. See, also. 16 Cyc. note 53. p. 1019, Id. note 57, p. 1020, and also Swenson v. Aultman, 14 Kan. 273, cited with approval in the case of Chickasha Cotton Oil Co. v. Lamb & Tyner,

"The better view is that the different numbers or impressions of a writing produced by placing carbon paper between sheets of paper and writing upon the exposed surface are duplicate originals, of which any may be introduced in evidence without accounting for the nonproduction of the others."

¶5 This court, in the case of Reeves & Co. v. Martin,

"The granting or refusing permission by the trial court to amend pleadings after the trial has commenced rests within the sound judicial discretion of the trial court, and his action thereon will not be reviewed here unless it is shown that he had abused that discretion." See, also, Stevens v. Matthewson, 45 Kan. 594,

¶6 By the Court: It is so ordered.