Kesterson v. La Moine Lumber & Trading Co.

ROSS, Circuit Judge (after stating the facts as above). [1] The original complaint contained no allegation of performance of the contract in question by the plaintiff, but on the trial the latter was permitted to amend the' complaint by making that allegation. That action of the court constitutes one of the “three principal questions” stated by the plaintiffs in error to be involved on this writ of error. The granting of such an' application rests in the sound discretion of the court, and, even should it be conceded that- the failure of the plaintiff to make the allegation in the original complaint was not cured by the issue in respect to that matter which was made by the answer of the defendants and the plaintiff’s reply thereto, the record in the case fails to show any abuse of such discretion. [2] The point urged by counsel for the plaintiffs in error against the right of the plaintiff in the action to maintain it on the ground that the Griffin & Skelley Company never complied with the Oregon statute prescribing the conditions under which foreign corporations may transact business in that state is not open to our consideration. That pleaded defense was demurred to by the plaintiff, and the trial court sustained it in its ruling on the demurrer. Upon the conclusion of the evidence given on the trial the court instructed the jury upon that subject as follows: “Another issue in the case is that the Griffin & Skelley Company was a foreign corporation, and that that corporation had not complied with the laws of the state of Oregon, and that, not having complied with the laws of the state of Oregon, it could not do business in this state; hence that, having entered into the contract which is set out here in the complaint in the state of Oregon, that contract is void. I. instruct you as to that is [359] sue that the contract was made with a view, upon the part of tlie defendants, and a knowledge of that fact, that this lumber was to be shipped from AYoodville out of the state of Oregon, into the state of California, or elsewhere, beyond the coniines of* the state of Oregon. This makes of the contract an interstate transaction; that is to say, that the parties were dealing in interstate commerce. The lumber which was the subject of the contract was to be shipped from one state into another, and that fact made it Interstate commerce. Tiie parties dealing with intersi ate commerce had a right to make the contract notwithstanding (iriflin & Skelley Company may not have complied willi the laws of the state of Oregon. Hence I instruct you that that issue is out of the ease, and yon need not consider it further.” To the instruction so given no exception was reserved or taken by the defendants, nor did they request any instruction upon that point. We are therefore precluded from considering whether the contract in suit was so concerned with interstate commerce as to free it from the operation of the Oregon statute. [3] But one other point urged by the plaintiffs in error remains to be considered, namely, the construction of the contract by the court, instead of leaving that question to the determination of the jury under appropriate instructions. The view taken by the trial judge was that by the express terms of the contract, rightly construed, all of the lumber embraced by it was to be delivered by the sellers free on board the cars at the railroad siding at Woodville Station, and that the payments thereby required to be made by the purchaser became due ten days after such time. The instructions upon the subject were to that effect, and we are of the opinion that they were correct. Binding no error in the record calling for a reversal, tlie judgment is affirmed.