J.I. Case Threshing Mach. Co. v. McGuire

• Decision Date: 24 January 1918
• Docket Number: 8 Div. 11
• Citation: 77 So. 729,201 Ala. 203
• Parties: J.I. CASE THRESHING MACH. CO. v. McGUIRE
• Court: Alabama Supreme Court

77 So. 729

201 Ala. 203

J.I. CASE THRESHING MACH. CO. v. McGUIRE

8 Div. 11

Supreme Court of Alabama

January 24, 1918

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Charles W. McGuire against the J.I. Case Threshing Machine Company for the penalty for a failure to satisfy a record of a mortgage. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

The complaint is in two counts, setting up the several breaches of the statutory duty with respect to each of two distinct mortgages, and is brought under section 4898, Code 1907. Pleas in abatement were interposed alleging that defendant is a foreign corporation, and was not doing business in Marshall county when the suit was commenced, and that the notice to enter satisfaction was given to an agent of defendant at Atlanta, Ga., and that for more than 60 days thereafter defendant had no agent in Marshall county authorized to enter such satisfaction, and merely that the notice was served on an agent of defendant in Atlanta, Ga. Demurrers were sustained to these pleas in abatement, and defendant then filed a plea of the general issue, and the following special pleas:

(4) That plaintiff was guilty of negligence which proximately contributed to the injuries complained of, in this, defendant sent to plaintiff written release of said mortgage, and authorized plaintiff to enter same upon the record of said mortgage; that said release and said authority were received by plaintiff; that plaintiff did not enter said release on the record, and did not notify defendant that he would not do so, and by his silence led defendant to believe that he accepted said authority, and would enter said satisfaction.

(5) Plaintiff is estopped to maintain said action for that within two months from the giving of said notice defendant gave to plaintiff written authority to have the probate judge enter satisfaction on the record of said mortgage; that this authority was furnished plaintiff at said date; that he could, by the exercise of reasonable diligence, have had the probate judge to enter such satisfaction within the two months after the request, or he could have, by the exercise of reasonable diligence, notified defendant that he would not have the probate judge make such entry, and the defendant could have, after having been so notified, had entry of satisfaction made, but plaintiff retained such written authority, and did not notify defendant that he declined to have the probate judge make such entry, and by his silence led defendant to entertain the reasonable and honest belief that plaintiff would have the probate judge make said entry of satisfaction until after the two months had expired.

(6) Defendant says that after notice was given by plaintiff to defendant to enter the fact of satisfaction on the margin of the record defendant did, within two months after the giving of said notice authorize and request plaintiff to enter the fact of satisfaction on the record, and that plaintiff agreed to do so, but plaintiff wrongfully failed to do so for more than two months after such notice.

Demurrers were sustained to pleas 4 and 5. The evidence shows without dispute that the mortgage dated February 5, 1907, as declared on in count 2, was paid in full. With respect to the mortgage declared on in count 1 of date November 25, 1909, it appeared that partial payment was made in money, and plaintiff testified that he agreed with one Burgess, defendant's general collection agent, to turn over to him for defendant the two traction engines covered by the mortgage in question in satisfaction of the amount then due. This agreement was denied by Burgess. Plaintiff also introduced in evidence the following letter and release which he received through the mail:

"Mr. C.W. McGuire," etc. "We inclose herewith satisfaction of your chattel mortgage which, with the notes it secured, have been cancelled by proceeds of chattel mortgage sale. It will be necessary for you to send satisfaction to probate judge at Guntersville, in order to have proper release made on records. Trusting you will receive same promptly, we beg to remain, yours very truly J.I. Case T.M. Co., per Burgess."

Exhibit A. "The undersigned, J.I. Case Threshing Machine Company, Incorporated, hereby acknowledges full payment of a certain chattel mortgage by proceeds of foreclosure sale said mortgage bearing date the 25th of November, 1909 executed by C.W. McGuire to J.I. Case Threshing Machine Company, Incorporated, which mortgage was received in the office of the judge of probate of the county of Marshall, in the state of Alabama, on December 6, 1909, and recorded in Book 28, p. 232. Said mortgage is hereby released, and said office is hereby authorized to enter this satisfaction of record." Dated, signed, and acknowledged.

To their admission defendant objected on the ground that Burgess' authority to write was not shown, and it appeared to be no more than an ancient narrative of a past transaction. Defendant's witness Burgess testified that the satisfaction above set out was sent to him from the office at Racine, Wis., that the signatures are genuine, and that he signed the letters as he had authority to do. He further testified that the price agreed upon with plaintiff for the two engines satisfied the principal of the debt only that there remained about $189 due for interest, besides other expenses, and that on April 20, 1913, he regularly foreclosed the mortgage under the power of sale, and bought in the two engines for $834, and that this was the only satisfaction defendant had of the mortgage indebtedness. The jury found for plaintiff for $200, without specifying which count they found on, and there was judgment accordingly.

Street & Bradford, of Guntersville, for appellant.

John A. Lusk & Son, of Guntersville, for appellee.

SOMERVILLE J.

In Lewis v. International Ins. Co., 73 So. 629, we held that a foreign insurance corporation not then doing business in the state could be sued in Montgomery county, where process had been served on the insurance commissioner, its agent for that purpose designated obediently to the statute, the commissioner being a resident in that county.

The necessary effect of that holding was to affirm that section 232 of the Constitution was permissive, and not restrictive, in its provision that:

"Such corporation [i.e., a foreign corporation with a known place of business and an

...