Alabama Nat. Bank v. C.C. Parker & Co.

• Decision Date: 17 April 1906
• Citation: 146 Ala. 513,40 So. 987
• Parties: ALABAMA NAT. BANK v. C. C. PARKER & CO.
• Court: Alabama Supreme Court

40 So. 987

146 Ala. 513

ALABAMA NAT. BANK v. C. C. PARKER & CO.

Supreme Court of Alabama

April 17, 1906

Appeal from Circuit Court, Marshall County; J. A. Bilbro, Judge.

"To be officially reported."

Action by the Alabama National Bank against C. C. Parker & Co. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This was a suit upon four promissory notes given to the Helm Bone Fertilizer Company by C. C. Parker & Co., negotiable and payable at the First National Bank of Gadsden, Ala., and before maturity sold to the Alabama National Bank. The defendant set up by way of plea that each note was given for commercial fertilizer and that the said fertilizers were not tagged as is required by law; also that the sacks containing the fertilizer were not branded, so as to show its contents and the commercial value of the fertilizers. The plaintiff demurred to these pleas, and as grounds of demurrer alleged that the complaint showed that the plaintiff was a bona fide purchaser for value without notice before maturity of the notes. These demurrers were overruled, and plaintiff replied setting up by way of replication that they were bona fide purchasers for value without notice and before maturity, and were not aware of the illegality of the contract or of the defenses set forth in the plea. Demurrers were sustained to these replications. The other facts sufficiently appear in the opinion.

In his oral charge the court said to the jury "that, if one sack of the fertilizer did not have the tag attached to it required by law when the fertilizers were bought f. o. b Albertville, Ala., then they must find a verdict for the defendant." The court, at the request of the defendant gave the following charges: Charge 1: "The court charges the jury that if every sack was tagged with a tag with the words printed thereon, 'Guaranteed, Alabama tag tax, 5 cents,' when it left Birmingham, yet if the tag was rubbed or lost off one or more of said sacks while in transit, and if such tag was not refixed to such sacks before its delivery to Parker & Co., then the plaintiff cannot recover." Charge 2: "The court charges the jury that the burden of proof is upon the plaintiff to reasonably satisfy the jury that each and every sack of fertilizer for which the notes were given were tagged with a tag with the words printed thereon, 'Guaranteed, Alabama tag tax, 5 cents,' and delivered to Parker & Co. at Albertville." Charge 3: "The burden of the proof is on plaintiff to prove that each and every sack of fertilizer was tagged with a tag with the words printed thereon 'Guaranteed, Alabama tag tax, 5 cents,' when delivered to Parker & Co., at Albertville, and not on Parker & Co. to show that they were not so tagged." Charge 4: "If any of the sacks of fertilizer for which the notes were given were not tagged with a tag with the words printed thereon, 'Guaranteed, Alabama tag tax, 5 cents,' when it was delivered to Parker & Co. on board the cars at Albertville, then it makes no difference that Parker & Co. did sell such untagged sacks without putting such tags on them; and, if such were the facts of this case, your verdict should be for the defendant." There was jury and verdict for defendant, and plaintiff appealed.

George D. Motley, for appellant.

Street & Isbell and J. A. Lusk, for appellee.

WEAKLEY C.J.

The circuit court committed no error in sustaining the demurrer to plaintiff's replication to the special plea, which set up, as a defense to the notes sued on, a failure to have the bags of fertilizer tagged as required by law. The plea showing the notes rested on a void contract, the replication of bona fide purchase for value without notice was no answer to it. Hanover National Bank v. Johnson, 90 Ala. 549, 8 So. 42. The burden of proof to sustain the special plea rested upon the...