Ewart Lumber Co. v. American Cement Plaster Co.

Decision Date01 May 1913
Citation9 Ala.App. 152,62 So. 560
CourtAlabama Court of Appeals

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Assumpsit by the American Cement Plaster Company against the Ewart Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Plea 1 is as follows: "That plaintiff is a corporation and is a nonresident of the state of Alabama, and that the plaintiff has no license to do business in the state of Alabama as a foreign corporation, and that the matters and things sued on in said cause took place in the state of Alabama, and that said account sued on accrued in the state of Alabama." Plea 5 sets up breach of contract and offers to set off damages because of said breach in the sum of $1,000, and claims judgment for the excess; the contract alleged being that plaintiff appointed defendant its exclusive agent to handle and sell in the city of Birmingham its manufactured goods known as Eagle Brand cement or plaster; that defendant accepted said agency and proceeded in good faith to carry out its part of the contract; and that defendant went to great cost and expense in advertising the brand and putting it on the market, and expended labor and time in selling and advertising; but that plaintiff breached the contract, in this, that during the time said contract was in force and effect plaintiff sold and shipped large quantities of said brand to other parties than defendant, and without just cause terminated said contract.

L.J Haley, Jr., and T.M. Bradley, both of Birmingham, for appellant.

Thompson & Thompson, of Birmingham, for appellee.


This was a suit upon the common counts--on an account, account stated, and for goods sold and delivered. There was judgment for plaintiff, and defendant appeals. Only three alleged errors are assigned here, to wit, that of the court in sustaining, respectively, the demurrers to pleas numbered 1 and 5, and that of the court in overruling a motion for a new trial.

There was no error in sustaining the demurrer to plea numbered 1. Foreign corporations have a right to engage in such transactions in this state as involve only interstate commerce without obtaining the permit required under sections 3642 to 3653, inclusive, of the Code, which are predicated upon section 232 of the Constitution. Ware v. Hamilton Brown Shoe Co., 92 Ala. 145, 9 So. 136; Cook v. Rome Brick Co., 98 Ala. 413, 12 So. 918; Stratford v City Council of Montgomery, 110 Ala. 619, 20 So. 127.

Pleas are construed most strongly against the pleader, and the facts alleged in plea 1 are not sufficient to show that the transaction was not one of interstate commerce or was one of intrastate business. See authorities cited and Armour Packing Co. v. Vinegar Bend L. Co., 149 Ala. 205, 42 So. 866, 13 Ann.Cas. 951; Ala. Western R.R. Co. v. Talley, 162 Ala. 403, 50 So. 341.

The sufficiency of a similar plea was not before the court in Culberson v. American Banking Co., 107 Ala. 458, 19 So. 34. The plea was there demurred to and improperly overruled by the lower court; but its action was not reviewed in this particular, since the appeal was by the defendant who complained of the sustaining by the court, against his demurrer, of plaintiff's replication to this plea. Proper order in pleading, prevented by the action of the lower court in that case in overruling the demurrer to the plea, requires that the facts set out in that replication should have appeared in the plea, and when done their sufficiency as a defense should have been tested by another demurrer on the part of plaintiff, raising the point that the plea showed on its face that the act of business alleged was a transaction of interstate commerce. However, the Supreme Court had to and dealt only with the case as presented to them; but their decision is certainly not an authority for appellant's contention here as to the sufficiency of his plea.

There was no injury, if error, in sustaining the demurrer to plea numbered 5, for the reason that substantially the same defense was set up in different verbiage in plea numbered 6 to which the demurrer was overruled. Creola Lumber Co. v Mills, 149 Ala. 474, 42 So. 1019.

Besides, we do not regard this error, if error it was, as being insisted upon in appellant's brief, since in it there is found neither argument nor a citation of authority in support of the assignment, but merely this statement: "We do not believe that said plea is subject to the grounds of demurrer assigned thereto." Pearson v. Adams, 129 Ala. 169, 29 So. 977.

The bill of exceptions sets out a motion for a new trial, followed by a recital that it was overruled, giving the date thereof, and that the defendant excepted. This is sufficient to authorize us to review the action of the court on this motion, though it would be otherwise if the motion had been granted and the other party was appealing. In the latter case a formal judgment granting the motion and setting aside the judgment rendered on the verdict would have to be shown; some of the cases holding by the bill of exceptions, others holding by the record proper. So. Ry. Co. v. Nelson, 148 Ala. 92, 41 So. 1006; and see Irby v. Kaigler, 60 So. 419, where the other cases on the subject are cited and reviewed.

As to the other contention of appellee, that, since the bill of exceptions fails to show that any evidence was introduced on the hearing of the motion for a new trial, none set out in the bill of exceptions can be considered, it is sufficient to say that the statute does not require that on such hearing the evidence on the trial proper should be reintroduced. It is not necessary that this be done, since the presumption is that all such evidence is within the breast of the trial court. Ala. Min. Land Co. v. Blocton, 150 Ala. 566, 43 So. 831.

A party may appeal from the judgment rendered against him and have reviewed not only this judgment and all rulings in the proceedings leading up to it, but incidentally the action of the court in overruling his motion for a new trial; or he may appeal under section 2846 of the Code alone from a decision granting or overruling his motion for a new trial. Cobb v. Malone, 92 Ala. 632, 9 So. 738; Henry v. Couch, 132 Ala. 572, 31 So. 463; 14 Ency.Pl. & Pr. p. 955 et seq. When he does the latter, no assignment of error predicated upon the original judgment or on the rulings of the court in the proceedings leading up to it will be considered, for the party by the nature of his appeal has limited the scope of the review here. City of Mobile v. Murphree, 96 Ala. 141, 11 So. 201; Karter v. Peck, 121 Ala. 638, 25 So. 1012; Lee v. Debardeleben, 102 Ala. 631, 15 So. 270.

The appeal in the present case, however, is by the defendant from the original judgment, and as an incident to such an appeal he has a right to assign and have considered the alleged error of the court in overruling his motion for a new trial. The notice of appeal served on appellee to the effect that the appeal was from the original judgment, giving its date, etc., was therefore sufficient to permit an assignment here of the alleged error of the court in overruling such motion. City of Mobile v. Murphree, supra; Henry v. Couch, supra.

This cause was tried and judgment rendered for the plaintiff on February 8, 1912. The motion for a new trial was then made by defendant (appellant here) and regularly continued from time to time until April 27, 1912, when it was regularly passed upon and overruled. The bill of exceptions was not filed with the trial judge until July 26, 1912, more than three months after the rendition of the judgment, but one day less than three months after the overruling of the motion for a new trial. Hence the bill of exceptions can be looked to only for the purpose of reviewing the action of the court on the motion for a new trial, and not for the purpose of reviewing the rulings of the court on the admission or rejection of evidence or in the giving and refusal of charges ( People's Bank & Trust Co. v. Keith, 136 Ala. 470, 34 So. 925; McCarver v. Herzberg, 135 Ala. 544, 33 So. 486), unless assigned as grounds of the motion for a new trial (Pilcher v. Heckman, 132 Ala. 573, 31 So. 469, 90 Am.St.Rep. 930; Karter v. Peck, 121 Ala. 638, 25 So. 1012; Central of Ga. v. Geopp, 153 Ala. 111, 45 So. 65; Montgomery Traction Co. v. Knabe, 158 Ala. 465, 48 So. 501, and authorities cited).

And when so assigned they will not avail, unless it appears from the bill of exceptions that they were excepted to at the proper time during the course of the trial (McLendon v. Bush, 127 Ala. 470, 29 So. 56; Geter v. Central, 149 Ala. 581, 43 So. 367; Smith v. Woolf, 160 Ala. 655, 49 So. 395; Central of Ga. Ry. Co. v. Ashley, 160 Ala. 583, 49 So. 388), and unless it further appears that the error was such as would have resulted in a reversal of the cause on appeal and direct assignment (L. & N.R.R. Co. v. Sullivan, 126 Ala. 103, 27 So. 760; 14 Ency.Pl. & Pr. pp. 834, 934).

The motion for a new trial contains eight grounds. The first is general to the effect that the verdict is contrary to the law....

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