Dundee Mortgage, Trust & Investment Co. v. Nixon

• Decision Date: 02 December 1891
• Citation: 95 Ala. 318,10 So. 311
• Court: Alabama Supreme Court
• Parties: DUNDEE MORTGAGE, TRUST & INV. CO. v. NIXON ET AL.

10 So. 311

95 Ala. 318

DUNDEE MORTGAGE, TRUST & INV. CO. v. NIXON ET AL.

Supreme Court of Alabama

December 2, 1891

Appeal from circuit court, Marengo county; WILLIAM E. CLARKE, Judge.

Assumpsit by the Dundee Mortgage, Trust & Investment Company against W. G. Nixon and others on a note under seal executed by Nixon as principal, and the other defendants as sureties. There was judgment of nonsuit, and plaintiff appeals. Affirmed.

The plaintiff in its complaint styled itself as a corporation under the laws of Great Britain. The defendants interposed as pleas: First, the general issue; second, payment; third, that the note upon which the action was founded was usurious; fourth, want of consideration; fifth, sixth, and seventh, that the plaintiff is a foreign corporation, and had not complied with the statutory and constitutional provisions which warranted it in doing business in this state at the time of the execution of the note sued on. There were demurrers interposed by the plaintiff to these several pleas of the defendants. Upon the trial of the case the plaintiff introduced in evidence the note sued on, and then rested. The defendants proved, which was not controverted, that at the time of the execution of the note the plaintiff had failed to comply with the act or the general assembly of Alabama approved February 28, 1887, which was entitled "An act to give force and effect to section 4, art. 14, of the constitution of the state of Alabama." This was all the evidence in the case; whereupon the court at the request of the defendants, gave the general charge in their behalf; to the giving of which the plaintiff duly excepted.

G B. Johnston, for appellant.

John C. Henderson and Watts & Son, for appellees.

COLEMAN J.

Facts which are averred in a complaint need not be pleaded in defense, or if set up in a plea, as a general rule, need not be proven by the plaintiff. So far as the rights of the plaintiff are concerned, the defendant has the right to consider facts averred in the complaint to be true. The complaint in this case sufficiently shows that plaintiff is a foreign corporation. The plaintiff offered in evidence a promissory note, headed and dated Uniontown, Ala. Prima facie Alabama was the place of its execution, and, no other evidence being offered on this question, the law presumes the contract was made at Uniontown, Ala. Farrior v. Security Co., 88 Ala. 275, 7 South. Rep. 200; Mortgage Co. v. Sewell, (Ala.) 9 South. Rep. 143. It was proven without dispute that plaintiff had not complied with the constitution of the state, and the statutory provision which requires that foreign corporations shall have a known place of business and an authorized agent before doing business in this state. It has been frequently decided that, however immaterial, defective, or demurrable a plea may be, if issue be joined upon the plea, and the evidence sustains it, the defendant has the right to have the court charge the jury upon such plea. The record shows that plaintiff filed several demurrers to the pleas of the defendants. After this was done, the defendants by leave of the court, withdrew their pleas, and demurred to the complaint. The court overruled the demurrer to the complaint, and by leave of the court the...