Bailey Iron Works Co. v. Mobile & O.R. Co.

• Decision Date: 04 June 1912
• Citation: 4 Ala.App. 660,59 So. 191
• Court: Alabama Court of Appeals
• Parties: BAILEY IRON WORKS CO. v. MOBILE & O. R. CO.

59 So. 191

4 Ala.App. 660

BAILEY IRON WORKS CO. v. MOBILE & O. R. CO.

Court of Appeals of Alabama

June 4, 1912

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Mobile & Ohio Railroad Company against the Bailey Iron Works Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The paper on which the suit is brought is as follows "Mobile, Ala., March 31, 1909. Mr. R. V. Taylor, General Manager, M. & O. R. R. Co., City: Mr. Minto informs us that he is indebted to your company in the sum of $340, and, as he is leaving the city indefinitely, we wish to say that we will assume responsibility for this account, and settle same in the course of the next thirty days. Respectfully, Bailey Iron Works, per A. Bailey, Pres." This paper is made the basis of the special pleas of the statute of frauds. The third replication is that in October, 1907, plaintiff sold to Minto four pair of car trucks, and that said car trucks were bought for defendant, and were delivered to the defendant and that by defendant's agreement of March 31, 1909, the defendant assumed liability for the balance of $340, due on the purchase price of said truck; and that by its said agreement the defendant was substituted in the place of the said Minto, in extinguishment of the said Minto's debt for said balance due on said purchase price; and that said agreement was an original undertaking based on sufficient consideration, and does not fall within section 4289, Code 1907. The powers of the corporation were shown to be to conduct a general foundry, machine shop, and boiler works, manufacture, buy, and sell all kinds of mill, marine, and railway machinery and supply works, to buy, manufacture, and sell all kinds of iron and other metal goods, to build and repair engines, vessels, boilers, sawmills, and other machinery, and generally to do all and any acts incident to the operation of a general foundry, machine shop, or boiler works.

Leigh & Chamberlain, of Mobile, for appellant.

F. J. Yerger, of Mobile, for appellee.

DE GRAFFENRIED, J.

There are a number of questions presented by this record, many of which it will not be necessary for us to discuss. In the complaint the appellee seeks to recover of the appellant a sum of money which, it is alleged in the complaint, is due by a written contract or undertaking, whereby the appellant bound and obligated itself to pay the plaintiff said sum within 30 days from the date of the contract.

The pleas, in effect, set up two defenses: First, that the instrument sued on is a writing, whereby the appellant made a special promise to answer for the debt of another, and that the instrument fails to express the consideration upon which it was executed, and that therefore the instrument sued upon is void under our statute of frauds; and, second, that the instrument, if not void, is such a contract as is ultra vires the corporation. To these pleas the appellee filed three special replications. No evidence sustaining two of the special replications was introduced; and the only questions before us are whether the appellant's evidence sustained its pleas, and, if so, did the appellee sustain the replication as to which it undertook to offer some proof.

First. The paper...