Ray v. Oklahoma Furn. Mfg. Co.

B-AYLESS, J. This is an appeal from the district court of Lincoln county, Okla., wherein the Oklahoma Furniture Manufacturing Company, a corporation recovered judgment against the defendant, T. H. Ray, on two promissory notes. The defendant brings this appeal. The plaintiff in its petition alleges, in substance; That it is a corporation licensed to do business in this state. That on the 8th day of February, 1923, the defendant became indebted to plaintiff, as evidenced by promissory notes, whereby he promised to pay the plaintiff on November 27, 1923, the sum of $832.93, with interest; that there was paid on said note, on October 10. 1928, the sum of $250; that there remained due the sum of $1,247.78, with interest. The second cause of action- is the same as the first, except that the note matured October 23, 1923, which said notes, together with indorsements thereon, were attached to the petition and made a part thereof. To the petition of the plaintiff -the defendant filed answer denying generally all of the allegations contained in plaintiff's petition, and further, by way of answer, stated; That the debt was barred by the statute of limitations, and that plaintiff has *415 no right to maintain the action by reason of its having failed to pay the state license tax for the years of 1929-1930, 1930-1931, and 1931-1932. At the trial the plaintiff offered in evidence the two notes sued upon, which were received in evidence over the objection of the defendant. Plaintiff then offered testimony of its attorney showing the principal place of business of the plaintiff was in Oklahoma City, Okla. Thereupon the defendant demurred to the evidence, which was overruled. It -was jagreedi in opepi court that the plaintiff had not paid the license tax of the state of Oklahoma for the years 1929-1930, 1930-1931, and 1931-1932. Judgment was rendered for the plaintiff. Only three of defendant’s assignments of error are urged, which will be treated separately : “Fourth Assignment: And the court erred in overruling defendant’s demurrer to the evidence of the plaintiff.” We have held that where a written instrument is relied upon and is attached as an exhibit, its wording controls over a variance therefrom in the allegations relating thereto in the pleadings. Mason v. Slonecker, 92 Okla. 227, 219 P. 357. The note and the indorsements thereon are attached and made a part of the petition; therefore, they are the controlling part of the pleading. The defendant pleaded, in an unverified answer, a general denial and the statute of limitations. This made no issue as to the execution, terms, or conditions of the note. In First State Bank v. Lock, 113 Okla. 30, 237 P. 606, we held: “Where the plaintiff pleaded the execution of a promissory note and attached a copy of said note as an exhibit to the petition, and the defendants failed to deny the execution of said note under oath, the execution and terms of said note, as pleaded, are thereby admitted, and same was properly admitted in evidence.” We have also held, in Gillespie v. First National Bank of Kingfisher, 20 Okla. 768, 95 P. 220: “The plaintiff in an action upon a negotiable promissory note, by introducing in evidence the note and indorsement of the payee thereon in blank, prima ¡facie establishes his case.” See, also. 8 C. J. 1015 and 1042, and Baggish v. Offengand, 97 Conn. 312, 116 Atl. 614. Therefore, if the note, with indorsements thereon, was properly admissible 'in evidence and the admission in evidence of the note with its indorsements made a prima facie case on the part of the plaintiff, the court made no error when it overruled defendant’s demurrer to the plaintiff’s evidence. The defense of the statute of limitations is a personal affirmative defense to the defendant (see Tiger v. Brown, 130 Okla. 83, 265 P. 124, and Amer. Ins. Union v. Jones, 135 Okla. 101, 274 P. 478), and when the plaintiff made a prima facie case, as aforesaid, the burden then shifted to the defendant to establish the bar of limitations, which defendant failed to do, since they introduced no evidence. The defendant’s fifth assignment of error is: “That the decision and judgment are not sustained by the evidence and are contrary to law.” In support of this assignment of error, defendant contends that the conditions of the notes, i. e., “This note shall at the option of the holder, become at once due and payable if any change takes place in the ownership of the business of the maker * * * or if any stock of goods or fixtures be damaged by fire, or if maker * * * or either of them become insolvent, or if I fail to pay any other indebtedness to the payee hereof at maturity, or if I be sued by any other creditor, or if a chattel mortgage be placed on his stock of goods or fixtures” —are contrary to public policy and in restraint of trade, and therefore render the obligation unenforceable. With this contention we cannot agree. In 6 R. C. L. chap. 208, pp. 808-809, it is said: “The rule invalidating contracts in restraint of trade does not include every contract of an individual by which his right to dispose of his property is limited or restrained. * * * It seems to be clear that, like agreements in restraint of trade, agreements restricting the use or sale of property must be reasonable to be valid. To such an agreement is likewise applicable the usual test of reasonableness, viz., whether the restriction imposed on one party is greater than is necessary for the protection of the other.” Further, it is said in 6 R. C. L. chap. 194, p. 789: “No better test can be applied to the question whether a particular contract is *416 reasonable than by considering whether the restraint is such only' as to afford a fair protection to the interests 'of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either; it can be only oppressive, and if oppressive it is, in the eye of the law, unreasonable. It seems that the extent of the restraint imposed by the contract would be of some importance in determining its reasonableness. * * *” jWe are of the opinion that the only purpose of the conditions was to accelerate the maturity of the obligation, in the event of their happening, for the protection of the plaintiff. Such conditions did not prevent the sale of the property, but merely provided for an earlier maturity of the obligation in the event of the happening of the conditions therein stated. We are unable to find anything oppressive in the conditions complained of. Defendant’s sixth assignment of error is: “That error was committed in permitting the plaintiff to prosecute its action and recover judgment therein when it was admitted that it hpd failed to pay the license tax and obtain certificates to do business in said state for the fiscal years of 1929-1930, 1930-1931, and 1931-1932.” In support of this contention, defendant cites section 9953, C. O. S. 1921 (chap. 06, S. L. 1931, art. 4, sec. 8, as amended by chap. 155, S. L. 1933, sec. 7), which provides : “Every domestic corporation subject to the provisions of this article, which shall fail to file the annual statement and to pay the annual fees required by the provisions of this article for 60 days after the time provided therefor, shall forfeit its charter; and every foreign corporation failing to file its statement and pay the annual fees within the time required by the provisions of this article, shall forfeit its license and right to do business in this state; but the state shall have and retain a lien upon the assets of every kind and character in this state of every such delinquent corporation, and may enforce such lien in an action brought in the name of the state on the relation of the Attorney General or the Corporation Commission, in any court of competent jurisdiction in any county of the state where the property of such delinquent corporation may be found.” In this connection we said in Smith Rolfe Co. v. Wallace, 41 Okla. 643, 139 P. 248: “A foreign corporation doing business in this state has complied with all the requirements of the Constitution (sections 43, 44, art. 9) and. of the statutes (sections 1538-1540, Comp. Laws 1909) by filing a copy of its charter or article of incorporation, and designating an agent for the service of process as required, a failure to do which would render its contracts void, and close the courts to Jit in enforcing them (section 1541, Comp. Laws 1909; Rev. Laws 1910, see. 1338) ; but it has failed .to comply with, and pay the license tax required by chapter 57, Session Laws 1910 (sections 7538 to 7549, Rev. Laws 1910). Held, that the contracts of such corporation, while in such default as to the payment of the license tax, are not void, nor is its right to enforce them in the courts of this state to be denied.” The case of Polson v. Revard, 104 Okla. 279, 232 P. 435, cited and relied upon by defendant, is not in point because in that case there had been a suit instituted by the state and a judicial determination, forfeiting the charter. In the case at bar the state had not seen fit to bring an action to forfeit the charter, and the defendant cannot be heard to complain until plaintiff’s charter has been forfeited by the state. In this connection see 7 R. C. L. chap. 731, p 724. The judgment of the trial court is affirmed. RILEY, C. J., and OSBORN, BUSBY, and WELCH, JJ., concur.