American Slicing Machine Co. v. Jaworski

Rosenberry, J. The defendant here urges several detailed errors as to admission and rejection of testimony. Many of these errors are not well assigned and they all become immaterial when the determination of all questions of fact was by the cross-motions for a direfcted verdict devolved upon the court. It is further urged that the finding of the court to the effect that the contract was procured without fraud or misrepresentation on the part of Pond, the agent of the plaintiff, is against the clear weight or great preponderance of the evidence. We shall not attempt to restate the evidence. There is a clear conflict between the evidence given on behalf of the plaintiff and that offered on behalf of the defendant, and there are many collateral circumstances. We cannot say the findings of the court are against the clear preponderance of the evidence. It is next urged on behalf of the defendant that the court having found that plaintiff had not complied with the provisions of sec. 1770&, Stats., which requires a foreign corporation, before transacting business in this state, to file its articles of incorporation in the office of the secretary of state and otherwise qualify itself, the contract is void. In respect to the contracts of foreign corporations which have not complied with sec. 1770&, sub. 10 provides : “Every contract made by or on behalf of any such foreign corporation, affecting the personal liability thereof or relating to property within this state, before it shall have complied with the provisions of this section, shall be wholly void on its behalf and on behalf of its assigns, but shall be enforceable against it or them.” [637] On behalf of the plaintiff it is urged, first, that the demonstration and sale of the machine Was incident to the transaction of interstate commerce and, as the trial court held, it was therefore not necessary for the plaintiff to comply with the provisions of sec. 17705; and second, that there is no evidence to sustain the finding to the effect that it did not comply with the statute. Under the authority of Regina Co. v. Toynbee, 163 Wis. 551, 158 N. W. 313; Unitype Co. v. Schwittay, 168 Wis. 489, 170 N. W. 651; and Phoenix N. Co. v. Trostel, 166 Wis. 215, 164 N. W. 995, the trial court was right in holding that the transaction disclosed by the evidence in this case was one in interstate commerce. On the previous day Pond had solicited an order from the defendant and had procured the defendant’s permission to bring a machine to Superior for the purposes of demonstration. There was and there is not claimed to be at this time an order for the goods. Pond returned to Duluth and the next day brought the machine in question with him from Duluth to Superior, and after demonstrating it for some three or four hours sold the machine to the defendant. There was no commingling of the goods brought in with the goods of the state; the machine was not brought here for the purpose of canvassing generally, but for the purpose of demonstration, and, if possible, making a sale pursuant to the understanding already had as stated. Upon the question of whether or not the burden of proof rests upon the defendant in a case of this kind, we are of the opinion that it does. Under our statutes the contract of a foreign corporation which has not complied with sec. 17705 is not void but is voidable, at the election of the opposite party. Rib Falls L. Co. v. Lesh & Mathews L. Co. 144 Wis. 362, 129 N. W. 595. The fact that the plaintiff corporation had failed to comply with sec. 17705 became, therefore, a matter of [638] defense, and the burden upon that proposition, as upon any other affirmative defense, rested with the defendant, and no inference arose that the corporation had not complied with the statute merely because it did not produce evidence that it had. The finding of the trial court to the effect that the plaintiff had not complied with sec. 1770b rested entirely upon such an inference. There was no evidence upon the subject either way. Where the defendant chooses to set up the claim that the contract is void under the statute, the burden is upon him to establish the fact upon which the claim rests; that is, noncompliance with the statutes. In this case the defendant failed to meet the burden; offered no evidence to sustain the allegations of his answer in that respect. The contract is prima-facie valid. Upon plaintiff’s second contention the judgment is also right, although the finding made by the trial cofirt to the effect that the plaintiff, corporation had not complied with the statute is not sustained. By the Court. — Judgment affirmed.