Alabama Nat. Bank v. C.C. Parker & Co.
| Decision Date | 19 December 1907 |
| Citation | 45 So. 161,153 Ala. 597 |
| Parties | ALABAMA NATIONAL BANK v. C. C. PARKER & CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Action by the Alabama National Bank against C. C. Parker & Co. From a judgment for defendants, plaintiff appeals. Reversed and remanded.
See 40 So. 987.
George D. Motley and A. G. & E. D. Smith, for appellant.
Street & Isbell, for appellees.
On former appeal of this case (Ala. National Bank v Parker, 146 Ala. 513, 40 So. 987) it was ruled that though the elements constituting one a bona fide purchaser for value and without notice are present, in an action on a note given for fertilizer sold in this state, such matter is unavailing as an answer to a plea setting up the absence of tags on fertilizer sold in violation of section 386 of the Code of 1896, and, further, that the considerations underlying the several notes sued on were separable, and that the partial or entire illegality of consideration of one or more of the notes would not defeat a recovery of those not so tainted. The effect of the holding was to fix the status of the litigation as practically presenting for trial five distinct causes of action, and, if so, the pleadings should have been addressed accordingly. Indeed, in this opinion in this case it was said: "Inquiry should be directed to the question of legality vel non of the consideration, in whole or in part, of each note, apart from the others."
Amended plea No. 1, directed against the five causes of action alleged "that the consideration for said notes was commercial fertilizer sold to defendants by Helm Bone Fertilizer Company in the state of Alabama; that at the time of delivery of said fertilizer the bags, or some of them, in which it was contained, were not tagged with a tag with the words printed thereon 'Guaranteed Alabama Tag Tax 5 cents,' as required by section 382 of the Code of 1896." Amended plea 1 1/2 was identical with amended plea No. 1, except after the word "contained" there was added the words "and constituting the consideration of said notes." Demurrers by plaintiff to these pleas raised the objection that it did not appear that untagged sacks were contained in each car; the respective notes being based, for consideration, upon car consignments. This objection was well taken. It is too manifest to admit of doubt that these pleas could be maintained by proof of an absence of tags on any part of the fertilizer contained in...
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