Alexander v. Alabama Western R. Co.

• Decision Date: 21 November 1912
• Citation: 60 So. 295,179 Ala. 480
• Parties: ALEXANDER v. ALABAMA WESTERN R. CO.
• Court: Alabama Supreme Court

60 So. 295

179 Ala. 480

ALEXANDER v. ALABAMA WESTERN R. CO.

Supreme Court of Alabama

November 21, 1912

Rehearing Denied Dec. 17, 1912.

Appeal from Circuit Court, Franklin County; C. P. Almon, Judge.

Action by I. E. Alexander against the Alabama Western Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Almon &amp Andrews, of Sheffield, and Kirk, Carmichael & Rather, of Tuscumbia, for appellant.

Percy Benners & Burr, of Birmingham, W. H. Key, of Russellville Blewett Lee, of Chicago, Ill., and M. C. Sivley, of Gadsden for appellee.

SAYRE J.

Appellant sued appellee for the value of work and labor done in the construction of the latter's line of railroad. The Talley-Bates Construction Company, a foreign corporation, had a contract with the defendant railroad company for the construction of that part of its road located in this state. Appellant had a contract with the Talley-Bates Company for the grading of a part of the road--was a subcontractor. These contracts were in writing, and their terms are not a matter of dispute. The Talley-Bates Company, to which we sometimes refer as the "construction company," entered upon and for a time prosecuted its work through appellant and other subcontractors. Plaintiff (appellant) sues for an alleged unpaid balance due upon the work done by him.

Two alternative theories are advanced in separate briefs filed on behalf of appellant. One of them takes the view, on the authority of Alabama Western R. R. Co. v. Talley-Bates Co., 162 Ala. 396, 50 So. 341, that the contract between the railroad company and the construction company was a mere nullity for the reason that the construction company, before entering upon the performance of its contract, failed to comply with that mandatory statute of the state which requires, under penalty of fine, that every corporation not organized under the laws of this state shall, before engaging in or transacting any business in this state, file an instrument in the office of the Secretary of State designating at least one known place of business in this state and an authorized agent or agents residing thereat (Code, § 3642); and further that the contract between plaintiff and the construction company was affected with the same vice, thus conceding provisionally that, apart from some small items of extra work, which are negligible in this connection, plaintiff had no express contract with the defendant company; that plaintiff had not failed in any contractual or statutory duty; that the railroad company had received the benefit of plaintiff's labor for which plaintiff could maintain no suit against the construction company; that defendant had defeated the construction company's suit on account of work done by plaintiff by pleading that company's failure to comply with the statute; and, in conclusion and on those equitable principles which control the quantum action, that he ought to have been allowed to recover of the railroad company as upon its implied promise to pay him what his work was reasonably worth. This line of reasoning in respect to its facts and its principles of law is defective in several particulars. It was not held in the Talley-Bates Case that no legal rights or duties could arise out of a contract executed under the conditions there shown. It was not held that the contract was void in the making, nor that at any time it became a mere nullity. It was held only that the Talley-Bates Company, a foreign corporation, could not enforce its contract, nor any rights dependent upon it, in the courts of this state. Nor can it be conceded, on facts assumed by appellant, that the contract between plaintiff and the construction company was a mere nullity. The statute does not so provide. It must be understood, and nothing has been said to the contrary, that foreign corporations only could offend against the statute, and they only by engaging in or transacting business in this state. It is impossible that a natural person or a corporation which has domesticated itself to the extent required by the statute can offend against its terms or policy, or that a just enforcement of its provisions should cause innocent persons to suffer. Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538. Later on we will refer to appellant's mistaken assumption of fact.

The statute, the decision in the Talley-Bates Case, and the plea upon which that suit was defeated, if that could be ascertained, are beside the question to be decided. Plaintiff cannot be allowed to recover against the defendant upon an implied contract for a reason wholly apart from the statute and the result of that suit--for the reason that plaintiff's work was done, not for the railroad company but for the construction company on the sole faith and credit of its express promise to pay plaintiff for the work done by him, as the special contract in evidence shows, or, if it be said that plaintiff looked also to defendant for compensation, then inducement to that expectation can be found only in the express collateral promise of the railroad company, alleged to have been made by and through its engineer, the authority and obligation of which will be considered when we come to consider that aspect of the case in which plaintiff relies upon an express promise. In either case there was an express contract covering the same field in which appellant would put into operation the law of contract by implication. The effect of all the authorities is that, where the parties have entered into a special contract, it is the exclusive source of legal rights and duties as regards the matters to which it pertains. An express contract excludes an implied one in reference to the same subject-matter. In A. G. S. v. Moore, 109 Ala. 393, 19 So. 804, a case very like this in essential character, except that no question of unenforceable promise was involved, it was held that an implied promise to pay one cannot be raised in the face of an express promise to pay another for the same consideration, citing Lankford v. Green, 52 Ala. 104; Shumake v. Nelms' Adm'r, 25 Ala. 126; and Huntsville Belt Line v. Corpening, 97 Ala. 689, 12 So. 295. See, also, cases cited to 9 Cyc. 242. A party may choose the person with whom, as well as the terms upon which, he will make engagements. Here the railroad company bound itself by special agreement to pay the construction company (no one else); plaintiff did the work upon consideration of the construction company's promise to pay him (no one else). In the situation here shown, the rule of reason and of the decided cases is that one who lets the contract may presume that a stranger who does the work does it for his contractor under the special contract he made for its execution, and, in the absence of some matter of estoppel, may receive the benefit of it without incurring liability to the subcontractor. Irvin v. Strother, 163 Ala. 484, 50 So. 969; Campbell v. Day, 90 Ill. 363. As the Supreme Court of Michigan said in Bond v. Pontiac Railroad Co., 62 Mich. 643, 29 N.W. 482, 4 Am. St. Rep. 885, "the appropriation (in such case) of what one has a right to suppose was properly done creates no estoppel." "One may well gain by the contract of another to which he is not a party; but the law will not imply his promise to pay for this gain...