Citizens' Nat. Bank v. Bucheit

• Decision Date: 11 January 1916
• Docket Number: 8 Div. 364
• Citation: 71 So. 82,14 Ala.App. 511
• Parties: CITIZENS' NAT. BANK v. BUCHEIT.
• Court: Alabama Court of Appeals

71 So. 82

14 Ala.App. 511

CITIZENS' NAT. BANK v. BUCHEIT.

8 Div. 364

Court of Appeals of Alabama

January 11, 1916

Rehearing Denied Feb. 1, 1916

Appeal from Circuit Court, Morgan County; D.W. Speake, Judge.

Assumpsit by the Citizens' National Bank against G.F. Bucheit. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The complaint alleges that the four notes were made payable to the Lipps Bottle Washer Company, Chattanooga, Tenn., and that before maturity of each of said notes plaintiff became the owner of same for a valuable consideration, and is now the holder and owner of said notes. The complaint was afterwards amended by adding separate counts declaring on each of the four notes.

The pleas of defendant are as follows:

Plea 2. That at the time of giving said note, payee was a corporation domiciled and located in the state of Tennessee that said notes were executed in the state of Alabama, and handed to one Downs, the agent and officer of the payee corporation; that the said bottle washer, for which the notes sued on were given, and to which payee had title, was then in the state of Alabama; and that the transaction occurred in the state of Alabama, where, under the contract between the parties, the machine was assembled and installed in New Decatur, Ala., by payee's president Downs, and was to be a part of defendant's bottling plant.

Paragraph 2. And defendant avers that at the time of said transaction herein set forth the said payee did not have in the state of Alabama at least one known place of business that it had not at that time filed with the Secretary of the State of Alabama a certified copy of its articles of incorporation.

Plea 3. After adopting all of paragraph 1 of plea 2, it avers that, at the time of the transaction referred to, said payee corporation had not filed in the state of Alabama in the office of the Secretary of State any instrument in writing under the seal of the corporation, and signed officially by the president and secretary thereof, designating at least one known place of business in the state of Alabama, and an authorized agent or agents thereat. Plea 4, after adopting all of paragraph 1 of plea 2, avers that the payee corporation had not at that time procured a permit to do business in the state of Alabama.

Plea 5, after setting out paragraph 1 of plea 2, avers that the said transactions were conducted in the state of Alabama by the payee corporation, through one Downs, its agent, who prepared the notes, brought them to defendant's place of business, had defendant sign them, and delivered them back to said Downs, and set up and installed or overhauled said bottle washer, and at the time of the performance of these acts the payee corporation had not a designated or known place of business in this state, and an authorized agent.

Pleas 6 and 7 set up the guaranty and warranty, and the failure of the machine to come up thereto, that the machine was worthless, and not what it was represented to be, and not capable of effective and satisfactory operation, and that after testing the machine thoroughly and finding it would not work, and that it was worthless, offered to return same to the Lipps Bottle Washer Company, but that they refused to accept it, and it was now at defendant's plant ready to be returned.

Replication 2 is as follows:

That the notes sued upon were acquired by plaintiff as owner for a valuable consideration and before maturity. That at the time the notes were complete and regular on their face, and plaintiff took them in good faith for value. That at the time said notes were negotiated to plaintiff, plaintiff had no notice of any infirmity in the notes or defects in the title if any defect there was, of the Lipps Bottle Washer Company, the payee of said note, in whose hands they were at that time, and had no knowledge or notice of any defense that defendant has to said notes, if any he has. And plaintiff avers that it became a holder in due course of the notes sued on.

The following charges were refused to defendant:

1. Affirmative charge.

2. That in reaching your verdict for this case you are not to consider any evidence as to what the contract was between Lipps Bottle Washer Company, and defendant.

3. I charge you that plaintiff is an innocent purchaser of the note sued on, and your verdict should be for plaintiff.

5. I charge you that defendant has not proven his pleas Nos 6, 7, and 8, as amended, filed in this case.

8. I charge you that defendant cannot defeat a recovery in this case by plea 2 filed by defendant herein.

9. I charge you that defendant cannot defeat a recovery in this case by virtue of pleas 3, 4, and 5 filed by him in this case.

10. If you are reasonably convinced from the evidence that Bucheit entered into a written contract for the purchase of the bottling machinery, your verdict should be for plaintiff.

11. If you are reasonably satisfied from the evidence that defendant Bucheit, either for himself or by another for him, and with his consent, entered into a written contract to purchase the bottling machine from the Lipps Bottle Washer Company, and if you are not reasonably satisfied from the evidence that said written contract so made contained a stipulation that said Lipps Bottle Washer Company was to do something more than to deliver the machine to defendant at his plant in New Decatur, Ala., your verdict should be for plaintiff; provided you are reasonably satisfied from the evidence that plaintiff discounted the notes sued on before maturity, in good faith, and that plaintiff gave a reasonable consideration therefor by crediting the account of the Lipps Bottle Washer Company

with the face value of said notes, less the discount, if they were discounted, provided you find that the Lipps Bottle Washer Company afterwards checked out of plaintiff's bank the entire amount of said credits, or a material portion thereof; and provided further you find plaintiff by its officers or agents had no notice or knowledge of any defect, if any, in the title of the Lipps Bottle Washer Company, in the notes sued on, and no knowledge or notice of any defense defendant had to said notes at or before the time plaintiff acquired them.

12. If you believe the evidence, plaintiff is an innocent purchaser of the notes sued on for value, before maturity, and without knowledge or notice of any defect in the title of the Lipps Bottle Washer Company thereto, if there was any defect in its title to them, and without knowledge or notice of any defect that defendant had, if any, to said note.

13. If you are reasonably satisfied from the evidence that defendant entered into a written agreement with said Lipps Bottle Washer Company for the purchase of the machine, and that said written agreement, if made, contained no provision for the erection of said machine, and agreement to make it work in a satisfactory manner, then your verdict must be for plaintiff.

14. Your verdict should be for plaintiff, provided you find that plaintiff purchased the notes sued on, for value, before maturity, and without notice of any defect of the Lipps Bottle Washer Company to the title to said notes, and any defense defendant had against the same.

15. The burden was on defendant Bucheit to show to your reasonable satisfaction that, before plaintiff paid a valuable consideration for the notes sued on (if you find that it did pay a valuable consideration for them), it had knowledge or notice, through some officer or agent of it, of the defenses existing against said note, or notice of such facts or circumstances as were sufficient to put plaintiff bank on inquiry which, if followed up, would have discovered the existence of such defenses.

16. If you believe the evidence in this case, I charge you that the contract by which the Lipps Bottle Washer Company was to sell and deliver the bottling machinery, which, if you believe the evidence, was the consideration of the note sued on, was not, and did not constitute, a doing of business in Alabama, and was not prohibited by the laws of the state, but was a valid transaction.

18. If you find that plaintiff was an innocent purchaser for value of the notes sued on, and that it became such purchaser before the maturity of said notes, then I charge you that your verdict should be for the plaintiff, if you believe the evidence in this case.

19. If, under the contract made by the defendant, with the Lipps Bottle Washer Company, said company was to ship a machine to defendant from Chattanooga, Tenn., stipulating only that it would do good work, and you find that said machine was shipped already put together, as a machine, except that the metal pieces which were to hold the bottles in place were placed in the bottom of the machine; and you further find that said metal pieces to hold said bottle in place fitted into grooves in said machine, and could be slipped into their appropriate places, on the machine by hand; and you further find that a small door to said machine was also placed in the bottom of said machine and needed to be taken therefrom and fastened in its proper place on the outside of the machine; and you find that this was all of the parts of the machine which were disconnected from their proper places on said machine--then I charge you the agreement of the Lipps Bottle Washer Company, if such an agreement was made, that it would assemble machine at defendant's plant in New Decatur, was complied with, and I further charge you that such agreement, if made, was not in violation of law, and defendant cannot defeat a recovery in this case by virtue of said agreement.

21. If you are reasonably satisfied, after considering all the evidence, that defendant made a written contract for the purchase of a machine, and that said contract

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