J.R. Watkins Co. v. Goggans
| Decision Date | 30 October 1941 |
| Docket Number | 7 Div. 667. |
| Parties | J.R. WATKINS CO. v. GOGGANS et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, DeKalb County; A.E Hawkins, Judge.
Taylor & Jeffery, of Birmingham, for appellant.
C.A Wolfes, of Fort Payne, for appellee Rowell.
The J.R. Watkins Company brought this action in assumpsit against William I. Goggans, as principal, and T.A. Goggans and J.T Rowell, as guarantors for their principal William I. Goggans. By amendment, William I. Goggans was stricken as a defendant and the cause proceeded to trial against the other two defendants.
The basis of the action is the written contract of unconditional guaranty to the plaintiff of the payment of a debt contracted by William I. Goggans. There was a verdict and judgment in favor of the two remaining defendants.
The cause was tried with a jury on pleas of the general issue and special pleas 4, 5, 6, 7, 8, 9, 10 and 11 of the defendant J.T. Rowell, and special pleas 4, 5, 6, 7, 8, 9 and 10 of the defendant T.A. Goggans. The court gave the general charge for the plaintiff as to pleas 9, 10 and 11 of defendant Rowell, and pleas 9 and 10 of the defendant Goggans. Pleas 4, 5, 6, 7 and 8 of both defendants are, in effect, the same and present the principal question here involved. The pleas allege, in substance, that the plaintiff is a foreign corporation who is not qualified to do business in this State, and that the transaction here involved constituted the doing of business in this State within the purview of the Constitution and statutes of Alabama, and is null and void. Section 232, Constitution of Alabama; Acts 1935, page 256, section 311; Code 1940, Title 51, section 342, Title 10, section 192 et seq.
Demurrers were interposed to the pleas here involved. The only ruling on the demurrers is as follows: "Demurrers to pleas overruled, plaintiff excepts." Under the uniform decisions of this Court this memorandum will not constitute a judgment sufficient for review here. Ferrell v. City of Opelika, 144 Ala. 135, 39 So. 249; McDonald v. Alabama Midland Ry. Co. 123 Ala. 227, 26 So. 165; Southern Express Co. v. Ashford, 126 Ala. 591, 28 So. 732; Wilbanks v. Mitchell et al., 239 Ala. 167, 194 So. 513; Skidmore v. H.C. Whitmer Co., 221 Ala. 561, 130 So. 194. Plaintiff's assignments of error, 1 to 7 inclusive, are answered by the foregoing.
Plaintiff's assignment of error number 8 is based upon the ruling of the trial court in permitting William I. Goggans to testify for the defendants as to the description of the territory that was assigned to him by the plaintiff, after it had been determined that the assignment was in writing.
Where the writing containing or constituting the primary evidence of the fact to be proved is satisfactorily shown to have been lost or destroyed without the fault of the party desiring to prove the fact, secondary evidence is admissible. 22 Corpus Juris 1024; Williams v. Lyon, 181 Ala. 531, 61 So. 299; Lacey v. Southern Mineral Land Co., 180 Ala. 57, 60 So. 283. The inquiry as to the loss of and search for the original document to render secondary evidence admissible, is a preliminary question addressed to the trial court whose determination will generally not be disturbed by an appellate court, unless based upon an error of law, or upon evidence which, as a matter of law, is insufficient to sustain it. Agee v. Messer-Moore Ins. & R.E. Co., 165 Ala. 291, 51 So. 829. We need not review in detail the evidence concerning the loss and search for the document, but on consideration thereof, we are persuaded that the preliminary proof in regard thereto was sufficient to admit secondary evidence. Pollak v. Winter, 197 Ala. 173, 72 So. 386; Laster v. Blackwell, 128 Ala. 143, 147, 30 So. 663.
Assignments of error 16, 17 and 18 are predicated upon the following exception to the court's oral charge: "With reference to the oral charge, I want to take an exception to the court's charging the jury with reference to doing business in this State, for record purposes only." The specific language of the charge, made the basis of the exception, is not stated,--the exception only designating the subject treated by the court in its oral charge. The appellant can take nothing by its assignments of error based on such an exception. Sullivan v. Miller, 224 Ala. 395, 140 So. 606; Birmingham Ry. L. & P. Co. v. Friedman, 187 Ala. 562, 570, 65 So. 939; Ex parte Cowart, 201 Ala. 55, 77 So. 349; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73; Beech v. State, 205 Ala. 342, 87 So. 573; Whittle v. State, 205 Ala. 639, 89 So. 43; Marbury Lumber Co. v. Lamont, 169 Ala. 33, 53 So. 773; Western Union Tel. Co. v. Burns, 164 Ala. 252, 51 So. 373; Knowles v. Blue, 209 Ala. 27, 95 So. 481; H.J. Crenshaw & Co. v. Seaboard Air Line R. Co., 219 Ala. 206, 121 So. 736.
As before stated, the principal question in this cause is whether or not the plaintiff was doing business in this State within the meaning of section 232 of the Constitution of Alabama and Acts of 1935, page 256, section 311; Code of 1940, Title 51, section 342; Title 10, section 192 et seq. Admittedly, the plaintiff is a corporation organized under the laws of the State of Delaware, with its principal place of business at Winona, Minnesota. It is engaged in the business of selling medical preparations, toilet articles, soap products, food products, stock and poultry preparations, extracts, flavors and other articles. It was not qualified to do business in Alabama during the period covered by the transactions involved in this suit.
Plaintiff insists that it was engaged solely in interstate commerce. That its business embraced sales by way of orders sent to its place of business outside this State, where they are accepted or rejected, and if accepted the orders are filled and the goods shipped into Alabama. That the evidence does not show such a doing of business as to require a compliance with our laws relative to foreign corporations. That the contract, which is the foundation of this suit, is a Minnesota contract. Although signed by the defendants in Alabama, it had no binding force or effect until accepted and signed by the plaintiff in Minnesota.
On the other hand, W.I. Goggans, who signed the contract as principal, testified: "Mr. Camp came out on Sand Mountain with Mr. Collins and he filled out my application for the job * * *, that was an application for the contract I later signed. Mr. Camp, the field representative, I think is what they called him, but I don't know, anyway he was the manager, he was the man on the job and everything like that. He met me and Collins at Fort Payne and we talked over the business a right smart. We had the bond and everything and he asked me who was going to sign the bond and I told him my father and Tom Rowell and he said, 'we will go get them,' and he carried me out to sign the bond. * * * I turned the bond over to him and left it with him. * * * I got the merchandise from Garfield Bearden. He was selling Watkins products in the same territory that I had. He did not continue to sell, he turned the same territory over to me. I got around $300.00 worth of products from Bearden. Mr. Bearden and Mr. Camp and Mr. Collins were present when the merchandise was turned over to me. * * * Bearden had been working in the same capacity that I was working in, in a territory, and that same territory Bearden was in was given to me. * * * I had an agreement with Mr. Camp about the delivery of the Bearden merchandise. He said 'If you intend to take it over, that is perfectly all right,' and I took the merchandise over. * * * I told Mr. Camp that Bearden had asked me to take over his merchandise and I asked him would it be all right, and he said, * * * I got it that way and the company charged me $306.01 for it, that's part of the account. I was assigned a certain territory. * * Mr. Camp just told me that I would have the territory from the Tennessee River. He said 'your territory will be in Jackson County from the line down to Guntersville, in Marshall County, and up highway 241 to Boaz and from Boaz cut across to the line,' and that section will be mine. He said Bearden had divided it up down there and asked me would it suit me and I told him I thought it would be all right, so I went ahead and it was not long til they set me back three or four miles on the south side and let some other man have it. They changed the territory later. They assigned J.D. Sargent to that territory on the other side of the highway. I don't know who assigned him, I think Mr. Collins let him have that territory, I will not be sure. The Mr. Sargent that had that territory is not here now. It taken from four hundred to six hundred customers off my territory, the best territory I had on the south side, I did not agree for them to take that territory...
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