North Birmingham Lumber Co. v. Sims & White

• Decision Date: 17 December 1908
• Parties: NORTH BIRMINGHAM LUMBER CO. v. SIMS & WHITE.
• Court: Alabama Supreme Court

48 So. 84

157 Ala. 595

NORTH BIRMINGHAM LUMBER CO. v. SIMS & WHITE.

Supreme Court of Alabama

December 17, 1908

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Sims & White against the North Birmingham Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The bill of exceptions shows that defendant offered a small book called the "check book," which was used by a colored man named Jack, who superintended the unloading of lumber, but who was not shown to have known where the lumber came from, and who had the lumber piled up in defendant's yard. It was further shown that the book was a book of original entry by said Jack, made in the usual course of business, in checking lumber received by the defendant, when it was unloaded from the cars and placed on the yard, and that the negro named Jack made the entries in the book. The book purported to show the amount of culls received from the plaintiff, and with this book defendant's inspector inspected the lumber on the yard. Evidence was then offered to show that the man that made the entries in the book was not in the employ of the defendant at the time of the trial and had not been for several months prior thereto; that when last seen he was in North Birmingham, and the defendant has no knowledge of the whereabouts of Jack, and did not know whether he was in the state or dead.

On page 9 of the transcript four charges are set out as plaintiff's given charges; but this part of the transcript is no part of the bill of exceptions. On page 27 of the transcript, which is a part of the bill of exceptions the following charges appear: "(1) The court does not intimate to the jury what the contract was, but instructs them that, whatever it was, both parties were bound by it and either one violating it was liable for the violation, if any. (2) If the jury believe from the evidence that the agreement was not absolute to furnish such lumber as defendant should order absolutely, but only if they could or had the timber, then that contract would prevail, and there would be no obligation to furnish it unless they could or had the timber."

The demurrers referred to seek to raise the question that the count served on the Mitchell Lumber Company was not the count or complaint under which they were then proceeding, as the party defendant had been changed to the North Birmingham Lumber Company.

Allan & Bell, for appellant.

Bowman, Harsh & Beddow, for appellee.

DENSON J.

This is an action of assumpsit, commenced on the 28th day of November, 1906, against the Mitchell Lumber Company, a corporation. On the call of the case for trial on the 7th day of November, 1907, the plaintiffs moved the court that the cause should proceed against the North Birmingham Lumber Company, a corporation, instead of the Mitchell Lumber Company. This motion was based upon the ground that the Mitchell Lumber Company had changed its name to the North Birmingham Lumber Company. In support of the motion it was shown that, in accordance with the statute in such cases made and provided, the name of the defendant was changed from Mitchell Lumber Company to North Birmingham Lumber Company in April, 1906, and upon this proof being made the court ordered and adjudged that the cause should proceed against North Birmingham Lumber Company. The change made in the name of the defendant had no more effect upon its identity as a corporation than a change of name by a natural person has upon his identity; neither did it effect its rights, nor lessen or add to its obligations. 1 Morawetz on Private Corp. 354; Lomb v. Pioneer Savings & Loan Co., 106 Ala. 591, 17 So. 670.

The complaint shows that the contract, the foundation of the suit, was entered into with plaintiffs by the corporation under its original name; and, notwithstanding the action was commenced after the change in name of the defendant was effected, this constituted no legal obstruction to the allowance of the amendment, nor to the order of the court that the cause should proceed against the North Birmingham Lumber Company. While the amendment or order changed the name, it did not, according to the authorities supra, work a change in the party defendant. The defendant, under its new name, was the same entity that made the contract and was originally sued. The effect of the order was to amend the...