Wright v. J. R. Watkins Co. , 86 Ind. App. 695 ( 1928 )

Action by appellee Watkins company against appellee Douthitt and appellants, on a contract executed by appellee Watkins company, a corporation, and appellee Douthitt. The Watkins company agreed in said contract to sell Douthitt certain goods, wares and merchandise at an agreed price therefor, for which Douthitt agreed to pay, and further, in said contract it was agreed that, at the time of the execution of the same, December 1, 1921, Douthitt owed the Watkins company $1,128.90, and, by the terms of said contract, the time for the payment of said indebtedness was extended to March 1, 1923. Appellants jointly and severally and unconditionally agreed to pay to appellee Watkins company the said sum of $1,128.90, and for other goods and articles as provided by the terms of the contract.

The complaint alleges that, in addition to the $1,128.90, the sum of $326.94 is also owing to appellee Watkins company for goods, wares and merchandise shipped to Douthitt. That there is due and owing to appellee Watkins company the sum of $1,454.75, with interest thereon from March 1, 1923.

To the complaint, appellants and appellee Douthitt answered in general denial and also a second paragraph of answer alleging payment. Appellant Peck also filed a cross-complaint alleging that he was only surety for appellee Douthitt and asking that the question of suretyship be adjudicated. To the second paragraph of answer and to the cross-complaint, the Watkins company replied in general denial.

A trial by court resulted in a finding for appellee Watkins company, that Douthitt owed said appellee $1,742.41, and that, for $1,734.92 of said sum, appellants were also liable; that appellant Peck was surety only on the contract, and that if he should pay the judgment rendered, he should have the benefit thereof against appellee Douthitt and appellant Wright. Appellants' motion in arrest of judgment was overruled, after which judgment following the finding was rendered against Douthitt and appellants, and for appellant Wright on his cross-complaint averring suretyship. From the judgment on the complaint, after appellants' motion for a new trial was overruled, this appeal, appellants assigning the errors hereinafter considered.

Appellants undertake first to present that the complaint does not state facts sufficient to state a cause of action. But they failed to demur to the complaint, and it is well settled 1. that a complaint may not first be so attacked on appeal. Riley v. First Trust Co., Admr. (1917),65 Ind. App. 577, 117 N.E. 675; Malone, Trustee, v. Kitchen (1922),79 Ind. App. 119, 137 N.E. 562; Hedekin Land, etc., Co. v.Campbell (1916), 184 Ind. 643, 112 N.E. 97. Further, no such objection having been stated by demurrer, it is expressly provided by ch. 125, Acts 1911, that it is deemed thereafter to be waived.

The only valid grounds which appellants present for their motion in arrest of judgment is that the complaint does not state facts sufficient to state a cause of action, but, as 2, 3. stated above, this objection has been waived by the failure of appellants to demur to the complaint for that reason. However, the appellants were not harmed by the waiver. As one of their proper grounds for their motion in arrest of judgment, appellants undertake to present that it appears by the complaint that the appellee Watkins company was a foreign corporation and that there are no facts alleged in the complaint that it was qualified to transact business in the state. They argue that a demurrer for want of facts puts in issue the plaintiff's right to sue. But there was no demurrer for want of facts, and, as stated above, the questions that would have been presented thereby are waived. Even if the question were presented, appellants could not prevail. Had the complaint been silent as to appellee's right to sue in the state, it is presumed that a foreign corporation has fully complied with the laws of the state in this regard. Sprague v. Cutter, etc., Lumber Co. (1886), 106 Ind. 242, 6 N.E. 335.

But, it appears by the exhibit to the complaint that the contract in question was a Minnesota contract, that the goods were shipped F.O.B. Winona, Minnesota, and that appellants 4. promised to pay appellee at Winona, Minnesota. Appellee Watkins company was not doing business within the state; by its transaction, it was engaged in interstate commerce, and it was not, therefore, required to comply with the foreign corporations laws of the state. Mutual Mfg. Co. v. Alpaugh (1910), 174 Ind. 381, 91 N.E. 504, 92 N.E. 113; J.R. WatkinsMed. Co. v. Halloway (1914), 182 Mo. App. 140, 168 S.W. 290;J.R. Watkins Med. Co. v. Hunt (1920), 104 Neb. 266, 177 N.W. 462; J.R.Watkins Med. Co. v. Hogue (1919), 138 Ark. 105, 210 S.W. 628;Buck Stove Range Co. v. Vickers (1912), 226 U.S. 205, 35 Sup. Ct. 41, 57 L. Ed. 189.

Under this assignment, they also undertake to present that they were not notified of Douthitt's default. This question could not be raised by motion in arrest, as against the complaint, 5, 6. for an averment of such notice was not necessary to make the complaint good, and by failing to answer want of notice of such default, appellants have waived the question. But that appellants were sureties and not entitled to notice of default, and not guarantors, see Hess v. J.R. Watkins MedicalCo. (1919), 70 Ind. App. 416, 123 N.E. 440.

Appellants having filed their motion in arrest of judgment thereby waived their right to file a motion for a new trial. Eckert v. Binkley (1893), 134 Ind. 614, 33 N.E. 619, 7, 8. 34 N.E. 441; Yazel v. State (1908), 170 Ind. 535, 84 N.E. 972; School City of Noblesville v. Heinzman (1895), 13 Ind. App. 195, 41 N.E. 464; New Hampshire Fire Ins.Co. v. Wall (1905), 36 Ind. App. 238, 75 N.E. 668. We do not, therefore, consider questions which appellants undertake to present by such motion. We find no reversible error.

Affirmed.