American Amusement Co. v. East Lake Chutes Co.

• Decision Date: 28 November 1911
• Citation: 56 So. 961,174 Ala. 526
• Parties: AMERICAN AMUSEMENT CO. v. EAST LAKE CHUTES CO.
• Court: Alabama Supreme Court

56 So. 961

174 Ala. 526

AMERICAN AMUSEMENT CO. v. EAST LAKE CHUTES CO.

Supreme Court of Alabama

November 28, 1911

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by the American Amusement Company against the East Lake Chutes Company for work and labor done and materials furnished. Judgment for defendant, and plaintiff appeals. Affirmed.

The plea referred to in the opinion is as follows: "The defendant, for answer to complaint, says that the plaintiff corporation is a foreign corporation, and had not, at the time it entered into the alleged contract sued on in this cause, complied with the provisions of section 232 of the Constitution of Alabama of 1901, which, among other things provides: [[Here follow the provisions relative to foreign corporations having a known place of business and an authorized agent or agents, and requiring the filing with the Secretary of State of a certified copy of its articles of incorporation.] Nor has it complied with section 3642, Code of Alabama which provides: [Here follow the provisions of said section, down to and including the words, 'or agents residing therein.'] Nor has it complied with section 3643, which provides: [Here follow the provisions of said section.] Defendant further alleges that in the performance of the contract sued on in this cause the plaintiff corporation was doing business in the state of Alabama without having complied with the provisions of the Constitution and statutes hereinabove set out, and the plaintiff corporation cannot maintain this action."

The replication to the plea was as follows: "Plaintiff says by way of replication to said plea, that before beginning or doing any work in Alabama the plaintiff's president inquired of an attorney of defendant, in the presence of the president of defendant company, if it was necessary for him to file any papers in Alabama for defendant to do the work in Alabama, and that the said attorney informed him that it was not; that the said attorney was at the time the attorney of defendant; that the said work was done and the materials furnished according to agreement, and the defendant never at any time objected to the work nor materials furnished before completion; and that after receiving the benefits of said agreement defendant is estopped from setting up said plea." The other replication appears in the opinion.

Herbert Jackson and Frank S. Andress, for appellant.

A Latady, for appellee.

SOMERVILLE J.

The plaintiff sues the defendant for money alleged to be due for work and labor done and materials furnished for and to the defendant under a certain contract between the parties for the improvement of certain real estate belonging to the defendant in Jefferson county, Ala. For defense the defendant pleads specially that plaintiff is a foreign corporation, and that in performing the contract sued on plaintiff was doing business in the state of Alabama without having complied with the requirements of section 232 of the Constitution and sections 3642 and 3643 of the Code of Alabama.

1. This plea unquestionably states a good defense to the action, and if supported by proof, would have entitled the defendant to judgment. The demurrers to the plea were properly overruled. A. W. R. Co. v. Talley-Bates Const. Co., 162 Ala. 396, 50 So. 341; Ware v. H. B. Shoe Co., 92 Ala. 145, 9 So. 136.

2. The plaintiff replied specially to this plea, alleging that it "was engaged in an interstate transaction, in that the order was taken by the plaintiff for the entire...