Paul v. W.G. Patterson Cigar Co.

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 58.
• Citation: 98 So. 787,210 Ala. 532
• Parties: PAUL ET AL. v. W. G. PATTERSON CIGAR CO.
• Court: Alabama Supreme Court

98 So. 787

210 Ala. 532

PAUL ET AL. v. W. G. PATTERSON CIGAR CO.

6 Div. 58.

Supreme Court of Alabama

January 17, 1924

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action on bills of exchange, or trade acceptances, by Benjamin C Paul and others against W. G. Patterson, doing business under the name and style of the W. G. Patterson Cigar Company. Following adverse rulings on the pleadings, plaintiffs take a nonsuit and appeal. Affirmed.

Ritter Wynn & Carmichael, of Birmingham, for appellants.

Thos J. Judge, of Birmingham, for appellee.

THOMAS J.

The plaintiffs below took a nonsuit by reason of the adverse rulings of the court in overruling demurrers to special pleas. The complaint was amended, so as to make the action against the defendant "W. G. Patterson, an individual doing business under the name and style of W. G. Patterson Cigar Company."

The assignments of error challenge the overruling of demurrers to pleas of several classes-2, 3, 6, 11 to 17, inclusive, and to A and C. The nature of the several classes of pleas may thus be stated generally, viz.: 2, 3, 6, 11, and 17 presented the want of consideration; 12, 13, and 16, failure of consideration and other matters of fact to that end included therein; pleas 14 and 15 presented the defense of fraud arising out of the facts stated; and plea C set up the fact of a foreign corporation doing business in the state without having complied with the statute, etc.

The judgment entry fails to state the exact ruling (in overruling demurrers) to pleas which necessitated the nonsuit with a bill of exceptions under the statute. Paterson & Edey Lbr. Co. v. Bank of Mobile, 203 Ala. 536, 84 So. 721,10 A. L. R. 1037. While the judgment entry did not indicate which of the several rulings on demurrers to pleas necessitated the nonsuit, it is safe to say that it was at least the last ruling, in not sustaining demurrer to plea C since, if the plea be well pleaded and supported by the evidence, the controversy would have been at an end and in defendant's behalf.

Plea C avers that the several instruments declared on in the several counts of the complaint were given by the defendant to the John Steigerwald Cigar Company, Inc., the indorser of said instruments; that at the time the same were accepted and prior thereto it was a foreign corporation, which had never complied with the provisions of sections 3642, 3651, and 3653 of the Code of 1907, and same are null and void. The plea further proceeds as follows:

"The prior to the acceptance of these instruments the cigar company sold to defendant a lot of cigars, with the understanding and agreement on the part of the cigar company that it would employ and place a man in defendant's store in Birmingham, Ala., and pay him a salary to sell to retailers in Alabama the cigars so purchased by defendant, said cigars to be sold and delivered from the cigars in defendant's store, and the defendant was not to pay the cigar company for the cigars until so sold by the employee of the cigar company as aforesaid; that it was also agreed that the defendant should accept trade acceptances for the price of said cigars payable at some future time, which said trade acceptances were to be renewed or substituted by other trade acceptances by defendant for the same amount and payable at a further time than the original acceptances; that in pursuance of this agreement the cigar company shipped said cigars to the defendant and employed a salesman or salesmen who sold and delivered to customers in Alabama from the store of defendant some of the cigars so

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