Johnson v. Seabobg

Mr. Justice Eakin delivered the opinion of the court. 1. It is contended by defendants that plaintiffs waived their right to declare a forfeiture of the lease for nonpayment of the rental, without notice to defendants and an opportunity to pay, by their agreement to a departure from the terms of the lease whereby, as defendants allege, part of the rent was paid to plaintiff Mrs. Johnson as she needed it. There was no agreement by which the payment of the rent for the year 1907 might be delayed or postponed beyond the maturity thereof, nor were any payments made or received thereafter. If the rent had been paid on May 16th, the day after the default, when called for by the plaintiff Johnson, that would have been a waiver of the default for that year; but the advance payments of interest and taxes on the order of Mrs. Johnson and the $200 to her were voluntary, and made prior to the default, and the requests therefor were not a waiver of prompt payment when due. Calling for or accepting partial payments prior to the default in payment would .not amount to an agreement to waive prompt payment. 2. The acceptance of payment of rent for the year 1906, after maturity, was a waiver of default for that year, but did not make a rule for the next year. Time was of the essence of the contract, and it was defendants’ duty to pay on the day it was due, or within 30 days thereafter, namely, May 15th. [31] 3. There is a suggestion that neither of plaintiffs was in Oregon at the time the rent was due, but O. F. Morton, at Astoria, was the agent of plaintiffs, with authority to receive and' receipt for the rent, and defendants had knowledge of that fact. 4. By accepting the assignment of the lease the defendant Seaborg Packing Company became liable for the payment of the rental; yet Seaborg was not thereby released. 5. There was no place of payment provided in the lease. Therefore, it was payable to the plaintiffs or to their agent at Astoria. 6. There was some controversy as to the amount of rent due on May 15th, Johnson contending that he had credited the $200 paid May 7th on the balance due for the year 1906; but the burden was upon plaintiffs to prove that there was that amount due on the present lease before they would be entitled to apply the payment thereon, the application of which was not directed by the defendants. The exhibits introduced by plaintiffs show the payment of the 1906 rent in full. If there was anything due plaintiffs upon a prior lease, they could not apply money paid by the defendant packing company upon it as its liability covered only the new lease, and a tender of the amount of the rent for the year 1907 would have been sufficient to prevent a forfeiture of the lease. Defendants contend that Johnson agreed to accept the rent on May 22d, while Johnson admits he extended the time of payment until the 21st of May only. But, without determining the date to which the time of the payment was extended, no tender was made, either on the 21st or on the 22d. A formal tender was made Thursday, the 23d, being beyond the time to which payment was extended. [32] 7. There is another matter that has a strong bearing upon this question. Defendant is a foreign corporation, and until the commencement of this suit had not complied with the statute of this state entitling such corporations to do business in this state. Its rig'ht to do business in this state is conditioned upon its filing with the Secretary of State a declaration of its purpose to engage in business within the state, and other data required by Section 6727, L. O. L., filing a power of attorney, appointing a resident attorney with authority to acknowledge service of summons or other process, and paying a filing fee of $50 and the amount of the license fees as elsewhere provided. Without so doing the defendant Seaborg Packing I Company did not have the right to take the assign- [ ment of the lease of the property here involved. It; was not subject to the jurisdiction of the courts of this state. By entering upon said property and using the same in its business of fishing it must necessarily have employed laborers and incurred indebtedness in Oregon, and was liable for personal injuries, if any were occasioned by its negligence, for all of which there should be a remedy in the courts of this state; and its case was just such a one as was contemplated to be covered by this statute for the protection of the state and its citizens. Therefore, the assignment of the lease attempted to be executed to the packing company by Seaborg was void, and it could not transact business thereunder. Its attempt to make tender of the'| rent under the lease was ineffectual, and it acquired no rights against the plaintiffs by reason thereof or of the^ assignment of the lease. 8. On February 26, 1907, on the application of creditors of the defendant packing company, its affairs were placed in the hands of a receiver in the courts in the State of Washington, on the ground that it was un [33] able to pay its debts, which are alleged to be more than $62,000, with assets” amounting to about $60,000, showing that it was insolvent. On July 3, 1907, it applied to the Secretary of State for a certificate showing its authority to do business within the state provided for by Section 6728, L. O. L., while it was still insolvent and its assets in the hands of a receiver, and on that day the secretary issued to it the certificate provided for by said section, to the effect that it had complied with the statute entitling it to engage in business in Oregon. The said section further provides that said certificate shall be prima facie evidence of the legal existence of the corporation and of its right to do business in Oregon. The pleadings and record in the case show that it was not entitled to the certificate or to do business in Oregon. It is contemplated by the statutes that the certificate shall issue to a solvent corporation with capital as shown by the application and as contemplated by the certificate. That statute was intended to be a protection to the people of the state having occasion to do business with the packing company, as well as to secure to the state the license fees and power to control it in the par- ' ticulars named. Although it has produced in evidence the certificate of the Secretary of State, yet, in view of the facts disclosed by this record, the certificate is impeached, and the court cannot recognize the contract entered into in violation of the statute, or its acts in relation thereto. The effect of such a contract is fully discussed in Hirschfeld v. McCullach, 64 Or. 502 (127 Pac. 541, 130 Pac. 1131); Cyclone Min. Co. v. Baker Light & Power Co. (C. C.), 165 Fed. 996; La Moine Lumber & Trading Co. v. Kesterson et al. (C. C.), 171 Fed. 980. Therefore, the court was justified in approving a forfeiture of the lease by plaintiffs and their [34] re-entry upon the premises, and they were entitled to the injunction against the defendants to prevent further interference by them. The decree is affirmed. 'Affirmed. Mr. Justice Bean and Mr. Justice McNary concur. Mr. Chief Justice McBride not sitting.