Roberts v. Cat-Nak Manufacturing Co. , 216 Ill. App. 245 ( 1919 )

Mr. Justice Barnes

delivered the opinion of the court.

This was an attachment brought by Lewis C. Boberts, since deceased, against the Cat-Ñak Manufacturing Company, incorporated, on the ground of its being a nonresident of this State. Later said company was served with summons, and filed its affidavit of defense denying it was a nonresident or indebted to plaintiff. It did not, however, deny that it was a corporation, and, therefore, under a rule of the Municipal Court, admitted it was. Such admission rendered it unnecessary, of course, to adduce the proof of incorporation to which defendant objected as incompetent. Hence error assigned thereon need not be considered. But there was also proof of a search of the records of the Secretary of the State of Illinois and that such result revealed no record of defendant’s incorporation in this State or of the issuance of a license to it to do business in this State. Such evidence, taken in connection with the admission of defendant’s incorporation, was prima facie proof that defendant was not a domestic corporation nor licensed to do business in this State.

The case was tried -without a jury. After eliminating over $350 of plaintiff’s claim, the court assessed his damages at $456.07, consisting of expenditures, as shown by competent testimony, made by him for the benefit of said company at the request, express or implied, of its president and manager.

At the close of the evidence the court, on plaintiff’s motion, struck defendant’s set-off apparently on the ground that, as the proof showed that defendant was an unlicensed foreign corporation, it would not, under our statute regulating the' admission of foreign corporations to do business in this State, be permitted to assert its claim. True, as plaintiff in error states, foreign corporations engaged in interstate commerce are not amenable. to the provisions of such statute. (Lehigh Portland Cement Co. v. McLean, 245 Ill. 326.) But they are so far as they engage in intrastate transactions, on which they cannot maintain suit if they have failed to comply with such statute. (United Lead Co. v. J. W. Reedy Elevator Mfg. Co., 222 Ill. 199.)

The burden of proof, of course, was on defendant to establish its claim under the set-off (Russell, Burdsall & Ward, Inc. v. Excelsior Stove & Manufacturing Co., 120 Ill. App. 23, 31), and therefore to show that the items of which it consisted were merely such as arose out of interstate commerce transactions. But it is clear from the record that plaintiff in error was not only engaged in interstate commerce but was also transacting business in this State, and as both the evidence received and offered in support of the counterclaim tended to show that most, if not at all, of the items included therein relate wholly to domestic business, we think the counterclaim or set-off was properly stricken. In such a case under a similar statute the Wisconsin Supreme Court has held a foreign corporation cannot maintain a set-off. (Ashland Lumber Co. v. Detroit Salt Co., 114 Wis. 66; Rib Falls Lumber Co. v. Lesh & Mathews Lumber Co., 144 Wis. 362.)

But it is urged that plaintiff cannot recover because he was in pari delicto. His claim was for an amount exceeding $800. In assessing the damages the court eliminated those items which were apparently expenditures made by plaintiff for defendant company to enable it to carry on business in this State. The record indicates that plaintiff was in a position to know that the company was not licensed to do such business, and such expenditures were properly excluded from his claim, he having knowingly and wrongfully incurred them to carry on such business in violation of the statute. But the items not eliminated, upon which we think recovery was properly allowed, appear to relate to the company’s business transactions outside of the State.

Complaint is made against the court’s rulings on evidence and its failure to mark propositions of law submitted to it by defendant. As the trial was without a jury, the court presumably considered only the material evidence received. In its exclusion of evidence we find no reversible error.

It should have marked the propositions of law. But as the evidence is sufficient to sustain the court’s judgment under the law applicable thereto, and as such propositions relate to legal questions which the record shows the court has otherwise ruled upon, and we find no reversible error in such rulings, we would not be justified in reversing merely because the court failed to mark the propositions so submitted to it. (Chicago Union Traction Co. v. City of Chicago, 202 Ill. 576, 578.) The judgment will be affirmed.

Affirmed.