Leverett v. Garland Co.

• Decision Date: 27 October 1921
• Docket Number: 3 Div. 529
• Citation: 206 Ala. 556,90 So. 343
• Parties: LEVERETT v. GARLAND CO.
• Court: Alabama Supreme Court

90 So. 343

206 Ala. 556

LEVERETT v. GARLAND CO.

3 Div. 529

Supreme Court of Alabama

Oct. 27, 1921

Appeal from Circuit Court, Montgomery County; W.L. Martin, Judge.

Assumpsit by the Garland Company against G.D. Leverett. Judgment for the plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.

The following are the pleas referred to in the opinion:

(2) Comes the defendant and for answer to the complaint says that each count of the complaint is based upon a contract between plaintiff and defendant whereby plaintiff agreed to sell to defendant certain items of paint products. And defendant avers that said contract is null and void and should not be enforced, for that plaintiff at the time of entering into such contract was a corporation organized under the laws of the state of Ohio, and was at such time doing, or attempting to do, business within the state of Alabama, in violation of the provision of the Constitution and of section 3642 et seq. of the Code of Alabama of 1907, in that said corporation carried a stock of goods at Birmingham, Ala from which shipments were made to purchasers in the state of Alabama and other states; that said corporation had failed or refused to designate an agent and a known place of business as required by said Code, and had failed or refused to file with the Secretary of State of Alabama the information required of foreign corporations doing business within the state, according to law.

(3) For answer to the complaint and each count thereof says that each count of the complaint is based upon a transaction wherein and whereby plaintiff, through its agent, one Emmet A. Jones, sold to defendant certain paint products described in the complaint; that said goods were received by defendant and were by him returned in like good order and condition as when received to the said Emmet A. Jones, as agent of the plaintiff.

(4) Comes the defendant and for answer to the complaint says that each count of the complaint is based upon a contract between the plaintiff and defendant, whereby plaintiff agrees to sell to defendant certain items of paint or paint products. And defendant avers that at the time of ordering the items sued for he ordered other items of paint products that all of the other items, to wit, 15 barrels of paint were shipped from Birmingham, Ala., according to the agreement between defendant and plaintiff's agent; that for its own convenience, and without the knowledge or consent of defendant, plaintiff made shipment of the particular item sued upon from Cleveland, Ohio, instead of Birmingham, Ala., although same was purchased at the same time and under the same terms and conditions as the items shipped from Birmingham, Ala., referred to above. And defendant avers that said contract is null and void and should not be enforced for that the plaintiff at the time of entering into such contract was a corporation organized under the laws of the state of Ohio, and was at such time doing business within the state of Alabama, in violation of the provision of the Constitution and of section 3642 of the Code of Alabama of 1907, in that such corporation carried a stock of goods in Birmingham, Ala., from which the shipments were made to the purchaser in the state of Alabama; that the items sued upon were contracted to be shipped from Birmingham, Ala., together with other items as aforesaid; that said corporation had failed or refused to designate an agent and a known place of business as required by said Code, and had failed or refused to file with the Secretary of the State of Alabama the information required of foreign corporations doing business within this state according to law.

The demurrers raised the points discussed in the opinion. The court at the conclusion of the testimony gave the affirmative charge for the plaintiff.

J.S. Parrish, of Montgomery, for appellant.

Weil, Stakely & Vardaman, of Montgomery, for appellee.

MILLER J.

The Garland Company, a corporation, sues G.D. Leverett for $250. There are two counts in the complaint. The first is based on an itemized account. The second is on an account stated between plaintiff and defendant or for merchandise, goods, and chattels sold by plaintiff to the defendant. There are three special pleas. They are numbered 2, 3, and 4. Demurrers were sustained by the court to each. These rulings of the court are the only assignments of error insisted on in brief by appellant.

We find in the record no demurrers to pleas 2 and 3. This being true, the court will presume, if the plea is insufficient or defective, that plaintiff's demurrer pointed out the defect by assigning a tenable ground of objection to it. Vogler v. Manson, 200 Ala. 351, 76 So. 117.

Plea 3 is defective in failing to aver that plaintiff's agent was authorized to receive the goods back, and did accept them for plaintiff. There is no presumption from an agent's authority to sell goods that he has authority after the goods are shipped and delivered to the defendant by the plaintiff to receive them back and rescind the sale. Bradford v Bush, 10...