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Inter State Vaccine Co. v. Redman.

And again it is stated that:

"the words 'affecting the personal liability' used in describing one of the prohibited classes of contracts, must be held to exclude all unilateral contracts, like bills and notes, all contracts fully executed outside of this state upon which there remains an obligation only payments, or payment and delivery, to be made in this state, and all contracts not by their stipulations imposing duties or liabilities on such foreign corporation. Because the contract in question was not, so far as it was made or took effect in this state, one affecting the personal liability of the plaintiff by any covenant or stipulation therein contained, and was wholly executed in New York and because it did not relate to property within the state, and did not constitute a transaction of business in this state, the plaintiff is entitled to recover thereon within the terms of the statute."

The dictum of the opinion is to the effect that a contract which by its stipulation imposes duties or liabilities on such foreign corporation may be invalidated by the states.

If we assume that the contract to purchase the hogs was an Ohio transaction, and that in connection with, as part and condition thereof, plaintiff warranted the hogs to be of certain kind and quality and free from disease, then it may be urged that the warranty as an express provision imposing a duty and liability upon the corporation creates a liability.

If a contract of warranty was made, it is such as affected the liability of the corporation.

If every contract affecting the liability is wholly void on its behalf, does the statute mean that that part of the contract giving the corporation a right of redress against the citizen is void? The statute does not clearly so state.

Every contract affecting the liability shall be wholly void en its behalf, would have to be constructed to comprehend or mean that if a contract affecting its liability also conferred procedural right upon the corporation, such part of the contract is to be void, but the contract affecting its liability may be enforced against it.

The statute designed to invalidate only the part conferring rights upon the corporation, and still it states that a contract

Franklin Common Pleas.

affecting the liability thereof is void. If the statute can be sustained and applied it is by resort to and construction of the words contract made on behalf of any foreign corporation shall be wholly void on its own behalf, and not by any reliance upon every contract of a foreign corporation affecting the liability thereof.

Liability means amenability and responsibility to law. Wood v. Currey, 57 Cal. 203, 209. Liability contemplates a condition that gives rise to an obligation to do a particular thing. Haywood v. Shreve, 44 N. J. L. 94, 104. Liability is responsibility, McElfresh v. Kirkendall, 36 Iowa 224, 226; Lattin v. Gillette, 95 Cal. 317 [30 Pac. 545; 29 Am. St. 115]. Liability has reference to responsibility in tort, as well as in contract. Miller v. Land Co., 134 Cal. 586 [66 Pac. 856].

If the words affecting the liability were to be the determinate factor in its construction, the statute would be meaningless.

If the contract affects the corporate liability as well as being one made on its behalf which confers upon the corporation a right to sue, then if the penalty attaches it could not enforce the contract in its favor, but the other party could enforce the liability of the corporation.

The language of the statute is unfortunate, and not clear and definite.

In considering the demurrer to the first defense, cognizance can not be taken of the contract alleged in the second cause of action which may be surmised to be defendant's version. But as already stated defendant has admitted that the contract described in the petition was entered into in Ohio, and was to be there carried out. Under such state of pleading, without complete denial that the contract pleaded by plaintiff was the contract, and without all the essential facts being stated in the first defense, it is clear that the penalty of Sec. 5508 can not be invoked.

The claim of alleged contract and breach of warranty made in the cross-petition presents a novel question. Without proper correction of the pleading as indicated it can not be fairly raised.

Legal ideas concerning breaches of warranty and the nature

of a cause of action thereon are somewhat obscure.

Inter State Vaccine Co. v. Redman.

Warranty has been used in such a great variety of senses, and the decisions have been so anomalous, that it is said that an attempt to arrive at a satisfactory conclusion about any principle supposed to be settled by them, would be hopeless if not absurd. McFarland v. Newman, 9 Watts. 55 [34 Am. Dec. 497]; Oil Co. v. Vuchanan, 120 Fed. 906 [57 C. C. A. 498].

It is said to be an agreement which refers to the subject matter of a contract, but not an essential part of it, 40 Cyc. 492; an express or implied statement of something which the parties undertake shall be a part of the contract, and yet collateral to the express object of it, 40 Cyc. 492-93. An indemnity against failure of performance, Id. It is used in the law of sales of personal property, to indicate a collateral undertaking on the part of the seller as to quality or condition, Id. Equivalent to a condition precedent. It is used as an express promise as to quality which is a condition until the sale is executed, and a warranty after it is executed. 40 Cyc. 493, N. 23.

If the warranty be not regarded as part of an express contract, as not an essential part of it, merely having reference to the subject-matter of a contract or as an independent condition, then it may be difficult to square such a claim with the penalty of Sec. 5508.

The pleadings should definitely clear up the locus of the contract, and the place where the cause of action accrued whether in Missouri or in Ohio.

Another question occurs to me concerning the cause of action. A right of action is property as if it were a corporeal: possession. Power v. Harlow, 57 Mich. 107 [23 N. W. 606]; Gibson v. Gibson, 43 Wis. 1 [28 Am. Rep. 527].

There is no doubt that a right of action, where it comes into existence under common law principles and is not given by statute as a mere penalty or without equitable basis, is as much property as any tangible possession, and as such within the rules of constitutional procedure. Dunlap v. Ry. 50 Mich. 470, 474 [15 N. 555].

The term "property" includes a cause of action. Seaman v. Clark, 60 App. Div. 416 [69 N. Y. Supp. 1002, 1004]. It is as

Franklin Common Pleas.

much property as a corporeal possession. Power v. Harlow, supra.

The demurrer to the first defense is sustained.

The court of its own motion orders that the denial of each and every allegation not admitted to be true be stricken out.

That defendant make it definite and certain whether he admits or denies that he made the contract alleged in the petition.

That he make it definite and certain in his alleged second cause of action, whether he undertakes to set forth what he claims to have been the full and complete contract, and whether he admits or denies the contract alleged by plaintiff.

It has been stated that defendant should file a general denial and then plead its version of the contract. Of course I am 1.ot fully informed of the exact claim defendant makes. It night be that specific denials and new matter should be the course adopted.

This is one instance where the vice of using an unauthorized form of denial plainly appears. The tools provided for by the code are much more effective than some form not provided by it. A party defendant is not required to admit allegations made by plaintiff. If there be no general or specific denial of matter alleged by plaintiff, of course it is admitted. Counsel oftentimes are better off not to undertake to make admissions; sometimes the effect of their admission is detrimental. This case is a striking instance of that fact. I have observed others that haunted counsel at and during trial. General denial can not often be made. This seems an appropriate case for its use, but when that plea can not be resorted to, the specific denial is much more effective than the common form of denial of each and every allegation not admitted or denied, which is not authorized by the code and should no longer be tolerated.

I hope the spirit will be appreciated when I jocularly remark that I have made much more headway in lecturing law students than I ever expect to make in my present capacity.

I think it just as objectionable to take up so much space in repetition of matter pleaded by the other side by admission of many allegations made by the adversary. "Let the judge do

Inter State Vaccine Co. v. Redman.

it"; that is, counsel should not admit anything but should specifically deny all that the pleader does not admit, and let the burden rest on the judge to discover what is admitted by failure to deny. This will be more effective.

The code does not require, nor authorize a party to enter a plea of admission; it merely provides for a general or special denial and plea of new matter. If I were to advocate reforms in the code, I would recommend quite a number of "Thou shalt nots" commandments, leaving the code as it is. The "shalt nots" would consist in injunctions not to violate the provisions of the code.

Counsel have asked that some consideration be given the entry in the other case recently before the court. In case No. 71,154 the plaintiff brought suit in replevin under a chattel mortgage taken by it on the hogs sold to defendant for the value of which this action is brought.

The court sustained a demurrer to the reply, and searching the record ordered that the case be dismissed.

On re-examination of the question involved in that case and considering the claims therein made in the light of the conclusions reached in this case, some suggestions are made which ought to meet the approval of both parties.

It is of course not proper to have two separate actions pending or having relation to the same action.

Plaintiff might have pursued different courses. It could have sued for the amount due on sale of the hogs; or it might sue in replevin; or it might sue for the value of the hogs, and to foreclose the chattel mortgage, as separate causes in the same action.

But it should not be allowed to subdivide its claims by bringing two separate actions as has been done.

Plaintiff makes the same claim in case No. 71,154, as in this one, that the chattel mortgage was given in consummation of a contract entered into in the state of Missouri.

I think it best to consolidate the two cases. The judgment of dismissal should be entered and defendant's cross-petition in that case should be incorporated in this case, when the answer and cross-petition is amended.

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