Capitol Lumber Co. v. Mullinix

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 236.
• Citation: 94 So. 88,208 Ala. 266
• Parties: CAPITOL LUMBER CO. v. MULLINIX.
• Court: Alabama Supreme Court

94 So. 88

208 Ala. 266

CAPITOL LUMBER CO. v. MULLINIX.

6 Div. 236.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Pickens County; R.I. Jones, Judge.

Detinue by the Capitol Lumber Company against J. F. Mullinix. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Patton & Patton, of Carrollton, and H. A. & D. K. Jones, of Tuscaloosa, for appellant.

Harwood McKinley, McQueen & Aldridge, of Tuscaloosa, and James J Mayfield, of Montgomery, for appellee.

SOMERVILLE J.

Plaintiff sues defendant in an action of detinue to recover possession of certain lumber described in the complaint.

Plaintiff is a foreign corporation, and defendant owns and operates a sawmill in Pickens county, Ala. Plaintiff and defendant entered into a written contract by which the former agreed to buy, and the latter agreed to sell, all of the No. 1 and No 2, common yellow pine lumber manufactured by defendant at his mill during the period between December 15, 1916, and January 1, 1918, running at its then capacity-the lumber to be cut, as to size and length, according to the purchaser's directions, and the prices to run from $11 to $14, accordingly.

After being sawed, the lumber was to be piled on sticks, and immediately after the first Tuesday in each month the lumber was to be counted by the purchaser's agent, whereupon the seller was to give to the purchaser a bill of sale therefor, and an affidavit showing that it was free from all liens, and also to procure a policy of insurance thereon against fire; and, upon the delivery to the purchaser of the said several documents, together with said agent's certificate as to the amount of the lumber, it was stipulated that the purchaser should pay to the seller "the sum of $6 per thousand feet for all such lumber, and such lumber shall immediately become the property of the first party [the purchaser]."

Upon the loading of the lumber on the cars for shipment to the purchaser, the waybill was to be immediately forwarded to it, and, on receipt of the waybill and the shipment, the purchaser was to pay to the seller the full amount of the purchase price.

The lumber in suit was sawed and piled by defendant, and checked up by the Jones Lumber Company, as plaintiff's agent, to whom defendant then delivered the several bills of sale executed by him to plaintiff; and the lumber was left where it lay in defendant's yard at his mill.

It is shown without dispute that the plaintiff corporation had not complied with any of the statutes of Alabama, which, without such compliance, inhibit the doing of business within the state by foreign corporations. And defendant denies plaintiff's right of recovery in this action on the theory that the execution of the contract of purchase and sale involved the doing of business by plaintiff within the state, and was not a transaction of interstate commerce; and that, notwithstanding the execution and delivery by defendant to plaintiff of the several bills of sale to the lumber, the contract of sale remained executory and unenforceable.

The contention last stated is based upon the testimony of the witness R. G. Jones, of the Jones Lumber Company, above referred to, who transacted all of plaintiff's business with defendant, including the checking of the lumber, the reception of the bills of sale, and the payment of the sum of $6 per thousand feet on the lumber thus checked and transferred.

This witness stated, on cross-examination by defendant's counsel, that the money thus paid "was an advance or you could call it a loan; it was partial payment for the lumber"; and, further, that he "took the bills of sale as security for the advance or loan." The questions which elicited this testimony were duly objected to by plaintiff's counsel on the grounds, among others, that they called for the conclusion of the witness, and sought to contradict or vary by parol evidence the terms of a written instrument, which objections were overruled.

The trial judge adopted defendant's view of the case, and gave for him the general affirmative charge.

Opinion.

By the terms of the written contract between the parties, defendant's execution of the several bills of sale vested in plaintiff the full title, legal as well as equitable, to the several lots of lumber described therein.

Moreover, the delivery of a bill of sale has, of itself, the legal effect of transferring the title from the vendor to the vendee, and the law will not permit the vendor to say that there was a parol agreement or understanding contradictory of that result. Shriner v. Meyer, 171 Ala. 112, 55 So. 156, Ann. Cas. 1913A, 1103; Morgan...