George D. Witt Shoe Co. v. Mills

• Decision Date: 10 March 1932
• Docket Number: 6 Div. 913.
• Citation: 140 So. 578,224 Ala. 500
• Parties: GEORGE D. WITT SHOE CO. v. MILLS.
• Court: Alabama Supreme Court

140 So. 578

224 Ala. 500

GEORGE D. WITT SHOE CO. v. MILLS.

6 Div. 913.

Supreme Court of Alabama

March 10, 1932

Rehearing Denied April 7, 1932.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Assumpsit by W. B. Mills against the George D. Witt Shoe Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

R. Du Pont Thompson, Walter S. Smith, and Cabaniss & Johnston, all of Birmingham, for appellant.

London Yancey & Brower and Erle Pettus, all of Birmingham, for appellee.

GARDNER J.

Appellant insists that the judgment rendered is void and the motion to vacate it should have been granted, and much of the argument is addressed to this question. The contention is rested upon the assumption that the proof offered on the motion established the fact that the defendant corporation had prior to the suit been dissolved and no longer a legal entity subject to suit. Fitts v. Nat. Life Ass'n, 130 Ala. 413, 30 So. 374; Nelson v. Hubbard, 96 Ala 238, 11 So. 428, 17 L. R. A. 375; Mumma-Potomac Co., 8 Pet. 281, 8 L.Ed. 945; First Nat. Bank of Selma v. Colby, 21 Wall. 615, 22 L.Ed. 687; Paschall v. Whitsett, 11 Ala. 479; Pendleton v. Russell, 144 U.S. 640, 12 S.Ct. 743, 36 L.Ed. 574.

And in reply thereto brief for appellee lays stress upon the fact that the defendant had by counsel entered an unconditional appearance, which is an admission of record of its character precluding a subsequent denial thereof even by a plea of nul tiel corporation, citing 14 Corpus Juris, 249; Oxford Iron Co. v. Spradley, 46 Ala. 98; Zealy v. Birmingham Ry. & Electric Co., 99 Ala. 579, 13 So. 118; Southern Ry. Co. v. Hundley, 151 Ala. 378, 44 So. 195.

But we are persuaded we do not reach a consideration of these questions, and this for the reason that we think appellant's contention is founded upon the false assumption that the proof offered, sufficed to show that the defendant corporation had in fact so lost its legal entity as not to be the subject of a suit. Defendant corporation was organized under the laws of the state of Virginia, and being a creature of that state was subject to dissolution under the laws of Virginia. The proceedings offered in evidence on the motion disclose a voluntary dissolution of the corporation by unanimous consent of its stockholders under the provisions of section 3810, Code of Virginia, wherein the order of dissolution, concluding with the further order, and that "the board [of directors] shall proceed to settle up and adjust its business and affairs," was duly issued by the state corporation commission. This is the extent of the proof. The courts do not take judicial notice of the statute laws of the state of Virginia (23 Corpus Juris, 131), and none were offered in evidence upon the hearing of this motion in the court below. The full effect of the order of dissolution by the commission is not made to appear. In our own state, provision is made for the continued existence of the corporation after dissolution for a limited period that it may prosecute and defend suits (section 7069, Code 1923), and we may reasonably assume like provisions are to be found in the other states.

Appellant having offered the proceedings which show on their face they rest upon the provisions of the Virginia statute (section 3810, Code of Virginia) should have also offered the statute that the court may be informed of the extent and full effect of such voluntary dissolution thereunder. And, as illustrative of the point, we may add that an examination of the Virginia statute referred to, discloses provisions akin to our own with added features not here necessary to notice. The duty therefore rested upon appellant to show such a dissolution as effectually barred a suit against the corporation, and failing therein, the court was justified in denying the motion without regard to the other questions to which we have made reference.

Upon the merits of the case we are persuaded there was prejudicial error in rulings on the evidence. In January, 1915, defendant was engaged in the manufacture and sale of shoes, and plaintiff entered into a written contract with defendant as its salesman on a basis of 6 per cent. on net shipments from sales made by him, and was paid upon that basis until beginning in September, 1917, he was paid on a basis of only 5 per cent, instead of the 6. The payments by check and statements of account continued on the 5 per cent. basis until his connection with defendant was severed in March, 1926.

It is defendant's theory that in January or February, 1917, its sales manager, Easley, came to Birmingham, Ala., from the home office in Lynchburg, Va., and saw plaintiff at the hotel where it was agreed that, pursuant to the general policy of the company, and as applicable to all salesmen, a change in compensation be made to a 5 per cent. basis, and that plaintiff so consented and accepted payment upon such a basis for more than eight years, without objection until his note for money loaned by defendant was placed in the hands of an attorney for collection following his severance with the company.

Plaintiff insists that no such visit was made him by Easley and no such conversation occurred; that he did hear mention made of a reduction to a 5 per cent. basis, but this was at a general meeting in Lynchburg, and that Easley, after the meeting, told him it would not apply to him, and told him afterwards his contract was all right.

For the purpose here in hand, other details are unnecessary to narrate. It then appears that the whole case turned upon the question of modification of the written contract, which in turn rested largely upon the testimony of Easley, who testified to the agreed modification in the hotel at Birmingham in the latter part of January or first of February, 1917, and plaintiff's emphatic denial thereof.

Defendant, by way of explanation of Easley's visit to Birmingham in 1917, when the alleged modification took place, offered to show that Easley was sent by the company on a visit to all salesmen in the territory with a letter from the president directing that all commissions be placed on a 5 per cent. basis, and that the conversation with plaintiff was in accord with such instructions, and offered explanations for the change so as to harmonize the compensation of salesmen in their various territories. The court declined such proof. Left thus unexplained, the jury could infer that the sales manager went from Lynchburg to Birmingham to see plaintiff only, where as defendant offered to show that he was on a like mission to all salesmen under directions from the president. "Whatever tends to shed light on the main inquiry, and does not withdraw attention from such main inquiry by obtruding upon the minds of the jury matters which are foreign, or of questionable pertinency, is, as a general rule, admissible evidence." Richardson v. State, 204 Ala. 124, 85 So. 789, 793.

"If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. The question as to its admission or rejection addresses itself to the court as one to be answered with a view to practical, rather than theoretical consideration. One fact is relevant to...