J.R. Watkins Co. v. Hamilton

• Decision Date: 21 May 1946
• Docket Number: 6 Div. 258.
• Citation: 26 So.2d 207,32 Ala.App. 361
• Parties: J. R. WATKINS CO. v. HAMILTON et al.
• Court: Alabama Court of Appeals

26 So.2d 207

32 Ala.App. 361

J. R. WATKINS CO. v. HAMILTON et al.

6 Div. 258.

Alabama Court of Appeals

May 21, 1946

Taylor & Jeffrey, of Birmingham, for appellant.

Arthur Fite, of Jasper, for appellees.

HARWOOD Judge.

This cause is an action in assumpsit filed by The J. R. Watkins Co. against Amos E. Green and McKinley McGough, guarantors on a bond made by David Cullen Hamilton to The J. R. Watkins Co. securing the payment of any indebtedness accruing to the J R. Watkins Co. as a result of sales of medicines, toilet goods, foods, etc., by the company to said Hamilton. The complaint as amended was against the two above named defendants, Hamilton having been stricken as a defendant, and contained six counts, the contract on which the suit was based being attached and made a part of the complaint.

The defendants filed separately and severally nine pleas. Plea No. 1 was the general issue. Pleas Nos. 2 3, 4, 5 and 6 were pleas of conditional delivery and execution of the contract. Pleas Nos. 7, 8 and 9 set up that plaintiff was a non qualifying foreign corporation doing business in Alabama. Plaintiff demurred to pleas Nos. 2, 3, 4, 5, 6, 7, 8 and 9, and the demurrers were sustained to all the pleas except 7, 8 and 9, being overruled as to these three.

Defendants then filed plea No. 10, which was a plea of non est factum, and issue was joined on pleas Nos. 1, 7, 8, 9, and 10.

The evidence shows that the company and Hamilton executed a contract wherein the company agreed to sell, and Hamilton agreed to purchase, merchandise on credit. Attached on the same page was a guaranty agreement executed by Green and McGough whereby they guaranteed the payment of Hamilton's indebtedness resulting from his contract with the company.

The J. R. Watkins Co. is a Delaware corporation, and its regular place of business is at Winona, Minnesota. The contract was accepted by the company at Winona, and Green and McGough notified by registered mail of the acceptance.

Pursuant to its contract with Hamilton the company sold and delivered to Hamilton by shipment from its regular place of business merchandise of the value of $793.20, on which payment was made totalling $443.70, leaving a balance of $349.50, the amount of this suit.

The evidence established the execution of the contract, thus overcoming pleas Nos. 1 and 10.

Pleas Nos. 7, 8 and 9, set forth that the company was a foreign corporation not qualified to do business in Alabama, and that the transaction culminating in the said contract was a transaction of business within this State voiding the contract. Sec. 232, Constitution of Alabama; Section 342, Title 51, and Sections 192 et seq., Title 10, Code of Alabama 1940.

One of the grounds of demurrer filed to these pleas is that it is a conclusion of the pleader. Since no facts were set out establishing the nature of the acts done by the company and relied on to constitute the doing of business the pleas are conclusive in nature and the demurrer should have been sustained. Hurst v. Fitz Water Wheel Co., 197 Ala. 10, 72 So. 314. However, since the evidence developed at the trial was as full in every way as could have been developed by the company had the demurrers been sustained to these pleas the substantial rights of the company were not injuriously affected, and this procedural error furnishes no cause for reversal. Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Ryan et al. v. Young, 147 Ala. 660, 41 So. 954; Payne v. Crawford, 102 Ala. 387, 14 So. 854.

The evidence adduced as to the issue raised by pleas 7, 8 and 9 was contained in the answers to interrogatories propounded by defendants below to the company and was to the effect that the company did not have any agent working for it in this State on 14 August 1940, but that one J. S. Webb, an employee of the company was in Alabama on that date for the purpose of interesting persons in becoming customers of the company; that Webb was to check public records and obtain information on persons who had signed contracts as sureties for prospective customers; to furnish prospective customers with printed forms of contracts with the company, and to mail such contracts as might be delivered to him together with the information obtained by his investigations to the office of the company in Minnesota for approval; that Webb had no authority to perform any act for the company, and had been specifically instructed not to be present when any contract or guaranty was signed, or to have anything whatsoever to do with the executions thereof.

That merely soliciting business in this State, the orders to be approved in the office of the foreign corporation and the goods shipped thereon into this State, does not constitute doing business in this State so as to bring the non qualified foreign corporation under the operation of our Statutes and ...