#### Frick Company, Appellant, *v.*Norman A. Pultz, Respondent.

Third Department,

May 6, 1914.

Sale — contract for sale of machinery construed—failure of purchaser to give notice of defects — foreign corporation — pleading — failure to allege compliance with section 15 of the General Corporation Law — practice —right of court to strike out evidence after taking case from jury.

A purchaser of machinery under a contract providing that he shall give notice in writing to the agent, and by registered letter to the manufacturer, within five days from putting the machinery in operation, of any defects therein; that the use of such machinery for more than five days without such notice, or the use of it at all after the company is alleged to have failed to remedy the defects, shall operate as an acceptance of the same, and that any assistance rendered by the manufacturer or its agents shall not operate as a waiver of such notice, is not entitled ten *210months after receipt of the machinery to relieve himself from his obligations by giving notice and offering to return the machinery, although it is defective and the company has been unable properly to adjust it.

A complaint in an action by a* foreign corporation is not demurrable for failure to allege compliance with section 15 of the General Corporation Law, unless it appears on its face that the foreign corporation was doing business in this state, and that it made the contract sued upon in this State.

Where, in an action by a foreign corporation, it does not appear upon the face of the complaint that the plaintiff was doing business in this State, or that it made the contract sued upon in this State, and there is no allegation of compliance with section 15 of the General Corporation Law, but such facts develop from the proof on the trial, and the plaintiff, having complied with the statute, offered in evidence a certificate from the Secretary of State to that effect, which was received, and no motion made to strike it out, the trial court has no power, after taking the case from the jury, to strike out the certificate admitted and dismiss the complaint for failure to comply with the statute.

Kellogg and Lyojst, JJ., dissented in part.

Appeal by the plaintiff, Frick Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 15th day of December, 1913, upon the dismissal of the complaint t>y direction of the court at the close of plaintiff’s case.

*T. B. & L. M. Merchant,*for the appellant.

*Perkins & Blakeslee [Charles C. Blakeslee*of counsel], for the respondent.

Howard, J.:

On October 6, 1910, the parties hereto entered into a written contract by the terms of which the plaintiff sold and the defendant purchased a threshing machine. The machine was delivered by the plaintiff and was in the possession of the defendant before the contract was signed. The defendant gave three notes aggregating $250 in payment for the machine. The style of contract used by the parties was a regular blank form usually employed by the plaintiff. The various provisions of the contract are plain, unambiguous and easy to comprehend. The plaintiff makes certain warranties in the contract and the defendant makes certain agreements. Among the agreements on the part of the defendant, the purchaser, is the follow*211ing: “(a) If machinery does not fulfil terms of warranty, to give notice in writing to the agent through whom purchased, and by registered letter to Frick Company, Waynesboro, Pa., within five days from first putting same in operation, stating in what respect said machinery fails to perform. * * *

“(c) If machinery is used longer than five days from first putting same in operation, without notice of failure to fulfil warranty as required in paragraph (a) above, or if used at all after Frick Company is alleged to have failed to remedy defects, it shall operate as an acceptance of same and as a fulfilment of the terms of warranty.

“ (d) That any assistance rendered by Frick Company, through its agents or employees, in operating said machinery within five days, from starting same, shall not dispense with the notice required in paragraph (a) above, if same does not fulfil terms of warranty; nor shall such assistance operate as a waiver of such notice, if given after the expiration of said five days, when no notice has been given of alleged failure to perform as provided in paragraph (a) above.”

The machine failed to work well, and before the contract was signed by the defendant the plaintiff’s, agent endeavored to fix it but failed. He made another effort in the fall of 1911 and failed again. At this time he had an expert with him, but neither the agent nor the expert could so alter or adjust the machine as to make it work. It has never worked but has been a failure, and has stood idle in the barn of the defendant.

By clause (a) of the defendant’s agreements in the contract the purchaser stipulated in case the machine failed to fulfill the terms of the warranty made by the plaintiff to give notice in writing within five days to the agent, also to the Frick Company at Waynesboro, Penn. This the defendant wholly failed to do. He gave no notice in writing to either the agent or the company. By clause (d) of the defendant’s agreements he contracted that any assistance rendered by the company or its agents within or after .five days from the time he started to operate the machine should not operate as a waiver by the company of the notice required by clause (a). *212It is thus seen that the plaintiff insisted in the plainest language upon having written notice of any alleged defects in the machine. The company evidently considered the notice of vital importance. It was, in fact, a substantial provision in the contract. The plaintiff’s plan of doing business required that it have this notice. It was operating over a wide stretch of country, through agents. It could only know of alleged defects in the machinery it sold by providing for notice within a reasonable time. This notice was fixed at five days. If purchasers were to be permitted to repudiate machinery at their leisure, after operating it and experimenting with it for months, the company could, of course, have no gauge on its business; it never could be certain that a sale had been consummated. It is, therefore, apparent that no matter how defective the machine may have been, the defendant’s failure to give the stipulated notice is fatal to his defense, and that his attempt, ten months afterwards, to relieve himself from his obligations by giving notice and offering to return the machinery was completely abortive.'

The plaintiff is a foreign corporation. If a foreign corporation alleges in its complaint that it is doing business in this State and alleges the making of the contract sued upon in this State, it must also allege compliance with section 15 of the General Corporation Law, otherwise the complaint is demurrable. *(Wood & Selick*v. *Ball,*190 N. Y. 217.) The complaint herein contained no such allegation. But a foreign corporation “has a perfect right to sue in the courts of this State on a contract made with a citizen of the State of New York either within or without the State, provided it has not located in the State of New York for the purpose of doing business within the State.” *(Eclipse Silk Manufacturing Co.*v. *Hiller,*145 App. Div. 568; Code Civ. Proc. § 1779.) Under this authority a complaint states a good cause of action and is not demurrable unless it appears on the face of the complaint that the foreign corporation was doing business in this State and that it made the contract sued upon in this State. These facts do not appear upon the face of the complaint before us; but they developed from the proof on the trial. There was no allegation in the complaint of a compliance with section 15 of *213the General Corporation Law. The plaintiff had, however, in fact fully complied with that section and it produced and offered in evidence a certificate in the usual form from the Secretary of State to that effect. This certificate was received in evidence and' no motion was made to strike it out. There being no question of fact to decide the trial court took the case from the jury and subsequently striking out from the evidence the certificate of the Secretary of State, he rendered a decision dismissing the plaintiff’s complaint because of its failure to allege compliance with section 15 of the General Corporation Law.

This disposition of the case was clearly erroneous. After the testimony was closed and the parties were gone from the court room and the case taken by the trial justice to his chambers for determination, he had no right to strike out evidence. This course was highly prejudicial to the rights of the plaintiff. The certificate was received against the defendant’s objection, the grounds of the objection being that the complaint contained no allegation that there was such a certificate. At the trial the court must have considered the general allegation that the contract was *“*duly made” a sufficient allegation. But upon whatever theory the certificate was received it should not have been stricken from the evidence without giving the plaintiff an opportunity to move, if it so desired, to amend the complaint to conform to the proof. If the trial court had indicated that it considered the allegations of the complaint insufficient to admit the certificate in evidence we must assume that the plaintiff would have moved to amend its complaint in that particular. If such a motion had been made, under the circumstances it should have been granted. (Code Civ. Proc. § 539.)

The course pursued by the trial court calls for a reversal of the judgment, and there being nothing to be gained by a new trial a judgment should be rendered in favor of the plaintiff for the relief demanded in the complaint.

In addition to the findings of fact made by the trial court we adopt as findings of fact those proposed by the plaintiff as appears in the record, and numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10.

All concurred, except Kellogg, J., who wrote for reversal and new trial, in which opinion Lyon, J., concurred.

*214Kellogg, J.

(for new trial):

I concur in reversal. There should be a new trial. The plaintiff should amend its complaint, and might have done so upon the trial, as clearly there would have been no surprise.

By the terms of the contract, in case the machine did not meet the warranties, the defendant was to notify the plaintiff by registered letter within five days from the time the machine was put in operation. The machine, in October, 1910, was taken from the fair ground to the defendant’s place. The plaintiff’s agent came the next day and set it up and found it would not work successfully. He agreed to put it in condition, and in about a week after he came and put in a new worm, and claimed that remedied the defect, and then obtained a delivery of the notes without further test of the machine. The defendant attempted to use the machine the next day after it came to his place. There is no evidence that'he used it after the plaintiff’s agent put in the new worm, and the transaction was closed by delivering the notes. The evidence is not entirely clear, but apparently the defendant’s theory is that after the plaintiff put the machine in running order and received the notes it was not used until the fall of 1911, when the agent came and tried to make it work. He failed. He then obtained the company’s expert, and, according to the defendant’s version, another failure followed. They were unable to make the machine perform any valuable service. The company was immediately notified at the Rochester office; the agent knew the facts. The provision in the contract that the notice is to be by registered letter directed to the company at Waynesboro, Penn., was not intended as a trap, but only to make sure that the plaintiff would receive the notice.' All the business was done from the Rochester office! Defendant mailed a letter to that office, and there is no question raised, as to its receipt. We then have the circumstances that the agent knew all the time that the machine would not perform the agreed service, and that the company was notified in writing within five days from its first use after the worm was put in and the notes delivered. There is, therefore, a question of fact in the case, and the defendant is entitled to have that question determined by a jury. We cannot deprive him of that right.

*215I, therefore, favor a reversal of the judgment and a new trial, with costs to the appellant to abide the event.

Lyon, J.,

concurred.

Judgment reversed, with costs, and judgment ordered for the plaintiff, with costs. In addition to the findings of fact made by the trial court this court adopts as findings of fact those proposed by the plaintiff, as appears in the record, and numbered 1, 2, 3, 4, 5, 6, *T,*8, 9, 10.